An Injury Caused to a Minor Daughter (87a-88a)

 

 

 

Rav Elazar asked Rav: If one injures a minor daughter of another person, to whom should [the payment for] the injury go? Shall we say that since the Torah bestowed upon the father [the right to] shevach neurim (the income of his daughter during the days of her youth), the payment for an injury should also be his, the reason being that her value was surely decreased [by the injury]? Or [shall we say that it was] perhaps only shevach neurim that the Torah granted him, since if he wishes to hand her over [in marriage e.g.,] to a mukeh shechin (one afflicted with leprosy) he could hand her over, whereas the payment for injury might not have been granted to him by the Torah, since if he wishes to injure her he would not have had the right to injure her? He replied: The Torah did not bestow upon the father [any right] except to shevach neurim…. Resh Lakish similarly said: The Torah did not bestow upon the father any right except to shevach neurim alone. But Rabbi Yochanan said: Even regarding wounding. How can you think about wounding? Even Rabbi Elazar only raised a question regarding an injury through which her monetary value is decreased, whereas regarding mere wounding, through which her monetary value would not [usually] decrease there was never any question [that the compensation would not go to the father. How then could Rabbi Yochanan speak of mere wounding?] Rabbi Yose bar Chanina replied: We suppose the wound to have been made in her face, and ifcheta mi-kaspa (thus causing her monetary value to be decreased).

 

            It is clear from the Gemara that the father is entitled to the payment for the shevet [loss of livelihood] of his minor daughter, because he is entitled to ma’aseh yadeha (her income), and therefore he is regarded as the injured party. On the other hand, it is clear – at least according to many Rishonim, as we shall see – that in principle the daughter is entitled to the payments for tza’ar (pain) and boshet (humiliation), because it is she who suffered the tza'ar and boshet, and we are not dealing with matters regarding which "ifcheta mi-kaspa." It turns out then that a father does not automatically receive all money that the Torah obligates be paid to his minor daughter. The disagreement between Resh Lakish and Rabbi Yochanan relates to the payment for nezek (the depreciation resulting from the injury). Here, of course, the primary burden of providing an explanation falls upon Rabbi Yochanan, who maintains that the father is entitled to this payment.

 

A jEWISH MAID-SERVANT

 

            Rashi and the Rambam explain that this entitlement stems from the father's right to sell his daughter as an ama ivriya (Jewish maid-servant), and from the fact that we are dealing with an injury that causes a decrease in the value of the father's "merchandise." So we find in Rashi, p. 88a, s.v. de-afchatei mi-kaspei: "And surely he can sell her." And so too in the Rambam, Hilkhot Chovel u-Mazik 4:14, where he rules in accordance with Rabbi Yochanan: "The following rules apply when a person injures the minor daughter of another person. If the injuries reduce her value, the payment goes to the father. Similarly, the payment for shevet goes to the father, as ma’aseh yadeha belongs to him, and so too the money received for selling her as an ama ivriya belongs to him." According to this, we must conclude that Rabbi Yochanan's ruling applies only to a ketana, a minor below the age of twelve, but not to a na'ara, a girl between the age of twelve and twelve and a half, for a father cannot sell his daughter of that age as an ama ivriya.

 

            Elsewhere (Hilkhot Avadim 1:10), however, the Rambam writes that the laws of an ama ivriya and an eved ivri (Jewish slave) only apply when the Jubilee year is in force, and therefore it is clear that Rabbi Yochanan's ruling applies even at a time when the law governing an ama ivriya is not in force. It seems then that we should follow the approach we used in the first shiur on chapter Ha-Chovel to explain the first Rashi in the chapter. As may be recalled, Rashi writes that the nezek of the nichval (injured party) is assessed as if he were a slave being sold in the market because "he caused him damage and a monetary loss, for had he been in need, he would have sold himself as an eved ivri." We explained there, in the wake of the Maharshal, that the law of nezek certainly applies even when the law of an eved ivri is not in force. Moreover the assessment is made as if he were sold as an eved kena’ani (non-Jewish slave). All that Rashi means is that we can translate the impairment of the nichval's work potential into terms of merchandise that suffered a decrease in value because in principle, a person – a Jew included (even if not an adult Jewess) – can sell himself as a slave of one type or another. In our passage as well, according to Rabbi Yochanan, the fact that the father can sell his minor daughter as an ama ivriya teaches us that he is the owner of this "merchandise" on the slave-market, and therefore he is entitled to demand compensation for the nezek (and therefore the Rambam relates to both the money received for selling her as an ama ivriya and ma’aseh yadeha).

 

            However, the Tosafot (87b, s.v. amar lei) relate to the Gemara in Ketubot 43a-43b, which according to their understanding explicitly establishes that the father is entitled to compensation for nezek that decreases the value of his daughter. Therefore, the Tosafot in their first explanation argue that all agree that the father is entitled to compensation for the decrease in the sum that he could have received for selling his daughter as an ama ivriya (and if we relate to the period when the law of an ama ivriya does not apply, we can presumably translate this to the decrease in ma'aseh yadeha he could have received). The disagreement between Rabbi Yochanan and Resh Lakish according to this understanding relates to her decrease in value as a shifcha kena’anit (non-Jewish slave) sold absolutely, in addition to the decrease in value as an ama ivriya sold until she reaches majority. Here the position of Rabbi Yochanan is once again the more difficult one: why should the father be entitled to the decrease in value of something that was not in his power to sell?

 

The Tosafot suggest an explanation that is not entirely clear: "Since this decrease in value takes place in her youth, it should go entirely to the father." It is possible that they mean that according to this understanding the father is the absolute owner of his daughter's work potential, and it is in his power to sell her, as it were, forever, only that her signs of puberty cancel his rights and the rights of her master. Therefore, when she suffers an injury during the period of her minority, the father is entitled to the compensation, because his daughter was injured while she was in his absolute possession at that point in time. The matter, however, requires further study.

 

Kiddushin

 

            In their second explanation, the Tosafot explain that the Amoraim agree that compensation for the loss in the daughter's earning power until the end of the period of her minority goes to the father. And it is possible that they also agree that compensation for the loss relating to the period when she is no longer a minor belongs to the daughter. The disagreement between the Amoraim according to this answer relates to the decrease in the kiddushin money that the father could receive should he decide to marry off his daughter (in accordance with the plain sense of Rabbi Elazar's question on p. 87a). According to this approach we are dealing with a factor that might allow the father to receive compensation for his daughter's injury even when she is a na'ara, for a father can marry off his daughter when she is a na'ara. So too it follows from the words of the Shita Mekubetzet in the name of R. M. of Sarcasta, that the possibility to broaden Rabbi Yochanan's ruling to include a na'ara depends on the question whether the father is entitled to demand compensation for the decrease in her kiddushin money: "We must consider with respect to the injury of a na'ara, whether the father can claim: I would have given her to a menuval (despicable person), and he would have given me a large sum as the money of her betrothal, but now with this injury I have lost this money. And for this reason he can collect compensation for the nezek of his daughter, since she has not reached full adulthood (bagrut)."

 

            It seems to me that in order to award the father compensation for the expected loss in kiddushin money, Rabbi Yochanan must make two different assumptions, and it suffices for Rabbi Lakish to disagree with even one of them. This means that there are two different possible disagreements between Rabbi Yochanan and Resh Lakish. Even though, for various reasons, I generally try to avoid explaining the views of the Amoraim based on their positions regarding other matters, in our case there seems to be room to hang the two possible disagreements on disputes between Rabbi Yochanan and Resh Lakish in other passages, as will be explained.

 

            One assumption that Rabbi Yochanan is forced to assume is that when a father marries off his daughter, he does so as her "owner." Surely the payment made for injury is not compensation for profit that might have been earned, but rather compensation for the injury to the property called the body (and this – as we explained in the first shiur on this chapter and at the beginning of this shiur – is even according to the first Rashi in the chapter). Therefore, if the father is entitled to compensation for the loss in his daughter's kiddushin money, we must assume that the halakhic definition of the authority that the Torah granted the father to marry off his daughter is that of an owner. That is to say, it is incorrect to see the father as sort of a guardian that the Torah established for the welfare of his daughter, who was granted the right to decide about the man she was to marry, and for that reason is entitled to the kiddushin money. According to Rabbi Yochanan the father is the person who "transfers" his daughter to her husband, and not only her representative who is in charge of the transfer.

 

            In Kiddushin 43b, Rabbi Yochanan and Resh Lakish disagree whether a na'ara, whose father is entitled to her kiddushin money, can also marry herself off to the man of her choosing. Without entering into the details of that passage, we can say that one of the explanations of the disagreement is that according to Rabbi Yochanan the father's authority to marry off his daughter – both when she is a ketana and when she is a na'ara – is an authority that is like that of an owner. Therefore, if the father is the owner with respect to the kiddushin, even during the period when the daughter is a na'ara, it is clear that the girl cannot make use of an alternative track and accept kiddushin on her own. Resh Lakish, in contrast, maintains that the father's authority, both when the daughter is a minor and when she is a na'ara, is that of a guardian whom the Torah authorized to marry her off. Therefore, in the case of a minor, he is the only person who can marry her off, as a minor does not have the capacity to accept kiddushin. But a na'ara – who has the legal capacity to execute a kinyan – is capable of accepting kiddushin on her own, that is to say, the father can marry her off as her guardian, and she can marry herself off as a person with independent legal capacity.

 

            Returning to our matter, it is clear that Rabbi Yochanan, following his own opinion, sees the authority to accept kiddushin as the authority of an owner, who is entitled like any other victim of damage to demand compensation from the person who caused the damage to his property. And Resh Lakish – also following his own opinion - can disagree and say that the father is merely a guardian. When the father accepts kiddushin on behalf of his daughter, the Torah grants him a right to the money, but as long as he does not accept kiddushin, we are not dealing with property belonging to him that suffered damage. This is what the Gemara means when it says: " Or [shall we say that it was] perhaps only shevach neurim that the Torah granted him, since if he wishes to hand her over [in marriage e.g.,] to a mukeh shechin he could hand her over, whereas the payment for injury might not have been granted to him by the Torah, since if he wishes to injure her he would not have had the right to injure her?"[1]

 

            The second assumption that Rabbi Yochanan must make relates to the nature of kiddushin money in theory and in practice. The [modern] reality with which I am familiar is that when a man betroths a woman he invests a certain sum of money, which is not particularly high, in the purchase of a wedding ring. The degree of the bride's "attractiveness" on the bridal market does not affect the sum paid for the ring. Of course, certain women have greater difficulty finding a husband than others (just as certain men have greater difficulty finding a wife than others), but this has no ramifications on the sum to be given as the kiddushin money. Rabbi Yochanan's position according to the Tosafot's second answer reflects a different reality, in which the sum given as kiddushin money is determined in accordance with the particulars of the bride, and therefore there is room to apply the laws of nezek in its regard.

 

            But in addition to the reality issue, there is also the halakhic definition. The Acharonim dealt at length with the fundamental question relating to the nature of a kinyan effected through money in general, and kiddushin effected through money in particular. In other modes of acquisition, e.g., a deed or sudar with respect to landed property, the act of kinyan is a halakhic act that transfers ownership, and alongside it there is payment in exchange for the property (unless we are dealing with a gift) – the buyer who acquires the property by way of one kinyan or another obligates himself to pay the purchase price agreed upon between the parties.

 

The Sema (190, 1) maintains that the kinyan of money is different with respect to this point, in that there is no split between the act of the kinyan and the money paid in exchange. Handing over the money is what transfers the ownership. The Taz (ad loc.) disagrees and says that even kinyan of money is a symbolic act that effects the transfer of ownership, and the money paid in exchange for the property is a separate matter as it is in the case of other kinyanim. The position of the Sema is known as kesef pir’on or kesef shivuy ("money of payment" or "money of value"), while the position of the Taz is called kesef kinyan ("money of kinyan"). The Taz adduces proof to his position from kiddushin effected by money, regarding which – argues the Taz – there is no room to speak of kesef shivuy.

 

Some Acharonim adopt the position of the Sema and distinguish between the kinyan effected by money in the case of landed property and kiddushin effected by way of money. But the Avnei Milu'im (29, no. 2) argues that there is no room for such a distinction, and as opposed to the view of the Taz, even the money used for kiddushin is kesef shivuy in its halakhic sense. For our purposes, there is room to argue that in order to see kiddushin money as a realistic sum that the father can attain in exchange for his daughter, and to award him that sum as compensation for an injury caused her, as we saw in the position of Rabbi Yochanan, Rabbi Yochanan must assume that kiddushin money is kesef shivuy, as argued by the Avnei Milu'im.

 

            There are those who concluded from the words of one of the Rishonim, Tosafot Ri ha-Zaken in Kiddushin 47a, that Rabbi Yochanan and Resh Lakish disagree about the point in dispute between the Sema and the Taz, and that according to Rabbi Yochanan the kinyan of money is kesef shivuy, whereas Resh Lakish agrees with the Taz, that the kinyan of money is based on kesef kinyan.[2] According to this understanding, this would certainly be Resh Lakish's position regarding kiddushin money, and it turns out then that Resh Lakish can – here too in accordance with his own position – disagree with Rabbi Yochanan's opinion regarding the nature of kiddushin money. Therefore, according to Resh Lakish, the father is not entitled to compensation for the loss relating to the kiddushin money, as we are not dealing with kesef pir’on that a person receives in exchange for his property, but rather with a symbolic sum that would have been awarded him in the framework of his authority to marry off his daughter.

 

Wounding that did not decrease her value

 

            The Gemara qualifies the position of Rabbi Yochanan and says that the father's entitlement relates only to an injury that decreased the monetary value of his daughter, but not to a wound that did not decrease her value. According to the simple understanding, this seems to mean that the entitlement is limited to nezek, and does not extend to tza'ar and boshet, which are non-monetary losses that do not pertain to the father. However, it is clear from the Rambam (Hilkhot Chovel u-Mazik 4:14) that we are dealing with an internal distinction within the liability for nezek, that the father is entitled to compensation only for an injury that decreased his daughter's value, but not for an injury that did not decrease her value:

 

The following rules apply when a person injures the minor daughter of another person. If the injuries reduce her value, the payment goes to the father….

The assessments for tza'ar, boshet and ripuy, by contrast, belong to the girl herself. Similarly, if the injuries do not reduce her value, the assessment should be given to [the daughter].

 

            Rav Chayyim of Brisk in his novellae on the Rambam (Hilkhot To'en ve-Nit'an 5:2) proves from this ruling that the essence of liability for nezek in a case of chovel is not compensation for the loss suffered by the nichval, but rather a novel liability that the Torah cast upon the person who caused the injury, for we see that the liability exists even when there is no monetary loss. I find it astonishing that Rav Chayyim could have said this without addressing the fact that the words of the Rambam are incomprehensible on the simple factual level – if there is no monetary loss, what damage is there? Surely damage is calculated in accordance with the market value; if there is no decrease in value, there is no damage!

 

            The Or Same'ach (Hilkhot Chovel u-Mazik 2:5) relates to this difficulty, and proposes an interesting solution: in order to impose liability upon a chovel, we need a decrease in value, for without it there is no damage. Compensation for the monetary damage connected to the reduced work potential of the daughter goes to her, as she is her own master. But the damage connected to her sale value as an ama ivriya is damage of an altogether different sort: the primary objective of selling a girl as an ama ivriya is matrimony, that the master or his son should designate her as his wife.[3] Regarding such a sale only certain types of injury will reduce the girl's value, e.g., an injury to her face that mars her beauty. The father has an interest in such an injury, as it reduces his ability to sell her as an ama ivriya (and the implication is that in such a case he is entitled to compensation for all the damage, even if at the same time her economic value as a shifcha kena'anit was reduced). The Gemara's words about a wound that does not decrease her value refers to a wound that imposes ordinary liability for nezek, and has no marital consequences; the father is not entitled to compensation for such damage. It should be noted that this distinction of the Or Same'ach is, in a certain sense, the opposite of that of Tosafot’s second answer, for they say that all agree that the father is entitled to compensation for the daughter's depreciation in value as a slave until the end of her minority, and that the Amoraim only disagree about depreciation relating to kiddushin.

 

Humiliation And Damage in the case of Rape and seduction

 

            In conclusion I wish to briefly relate to the third source mentioned by some of the Rishonim as a source for the father's entitlement to compensation for his daughter's injury, that is, his entitlement to the payments for boshet u-pegam (humiliation and damage) in the case of his daughter's rape or seduction. A rapist and a seducer are liable, in addition to the kenas (penalty) imposed upon them by the Torah, for payments for boshet u-pegam (and in the case of rape, also for tza'ar). The Rambam's wording in Hilkhot Na'ara Betula (2:10) imply that these payments are unique to the case of rape and seduction. But according to many Rishonim, these are concrete applications of the general liabilities for injury in the cases of rape and seduction. The Gemara in several places (Kiddushin 3b, Ketubot 46b) explains the father's entitlement to these payments as based on the fact that it is within his authority to hand her over to a menuval or mukeh shechin, and thus it is within his power to reduce her value and cause her humiliation, and therefore these realms are regarded as subject to his halakhic authority.[4] In our passage, Rabbeinu Peretz writes that the rationale for awarding the father the compensation for his daughter's injury is derived from his entitlement to compensation for damage in the case of rape and seduction. According to this, it is easy to understand the reasoning that the Gemara offers for the opinion that rejects the father's entitlement: "Or [shall we say that it was] perhaps only shevach neurim that the Torah granted him, since if he wishes to hand her over [in marriage e.g.,] to a mukeh shechin he could hand her over, whereas the payment for injury might not have been granted to him by the Torah, since if he wishes to injure her he would not have had the right to injure her?" – the Torah awarded the father the payment for damage, for we are dealing with damage that relates to something that the father could have granted as he desires: the right to have intercourse with his daughter. But since he is not permitted to cause his daughter an injury, he is not entitled to compensation for her injury. It is, however, difficult to understand how Rabbi Yochanan responds to this decisive argument.

 

            Another Rishon who merits mention in this context is the Ba'al ha-Ma'or. Unfortunately his words have not been preserved in their original form, and therefore we are forced to reconstruct them from partial citations found in other Rishonim. It follows from what he says that in the case of an injury that reduces the daughter's value, the father is entitled not only to the payments for nezek and shevet, but rather to all the payments, with the exception of ripuy. This he says in light of the aforementioned passage that states that the father is entitled to the payments for boshet u-pegam in the case of rape or seduction, and in light of the opinion of Rabbi Yochanan who does not distinguish between shevach neurim and compensation for injury.

 

            The Ramban strongly rejects the novel position of the Ba'al ha-Ma'or, and adopts the opinion of the Rif that the father is only entitled to compensation for damage that reduces his daughter's value. He presents two different arguments against the view of the Ba'al ha-Ma'or. One argument is that we cannot base the father's entitlement to compensation for injury upon his entitlement to the payments made by a rapist or seducer, for the latter is based on the father's authorities in the realm of marriage, and here we need a different foundation, i.e., the father's ability to sell his daughter as an ama ivriya, or give her away in marriage. The Ba'al ha-Ma'or can answer that the payments of a rapist or seducer teach us about the father's ownership of his minor daughter in certain contexts; this ownership entitles him to compensation for an injury caused her in a case where she was reduced in value.

 

            The second argument against the Ba'al ha-Ma'or is that even if we learn that the father is entitled to compensation for the injury when the daughter is reduced in value directly from the law of damage in the case of rape or seduction, what reason is there to distinguish between payment for tza'ar in a case where she was not reduced in value, which even the Ba'al ha-Ma'or agrees goes to the daughter, and payment for tza'ar in a case where she was reduced in value, which does not go to the daughter? Why is the liability for tza'ar, which fundamentally belongs to the daughter, determined by the liability for nezek and shifted to the father?

 

            Can we reconcile the position of the Ba'al ha-Ma'or? As may be recalled, the Gemara above (85a-85b) inferred from various sources that there is liability for the four payments even when there is nezek, and as for tza’ar, the opposite possibility was raised, that there is liability only when there is no nezek. It is possible that the Ba'al ha-Ma'or understands that even according to the Gemara's conclusion, that there is liability whether or not there is nezek, there is a difference between the two. Liability when there is no nezek is liability for the personal suffering, and to this the daughter is entitled independently. On the other hand, liability when there is nezek, compensates for the financial loss – the person who caused the injury committed an act that caused damage and created monetary liability, and the compensation that he must offer is comprised of several components, including tza’ar. The party who is entitled to these payments is the owner of that which suffered the damage, even if he did not actually suffer the pain. In all honesty, this explanation is not convincing, and I would be happy to hear an alternative from one of the readers.

 

The Ba'al ha-Ma'or proposes further that even in a case of injury where there is no decrease in value, liability for boshet is exceptional in that the payment goes to the father. For this, according to the Ramban's understanding, the Ba'al ha-Ma'or offers two rationales: That the boshet is also that of the father, and that the father suffers a loss because the boshet reduces the kiddushin money that he might have received. The Ramban asks: why should this boshet reduce the kiddushin money? The Ba'al ha-Ma'or might be alluding to a broader issue, that the father is the one in charge of everything connected to his daughter's dignity. Here too the matter is unclear, and I prefer to conclude that the words of the Ba'al ha-Ma'or require further study.

 

(Translated by David Strauss)

 

 

Sources For the next Shiur – Bava Kama 22

THe Boshet of Slaves and the parameters of "Brotherhood"

 

            In next week's shiur we will study the next portion of the Gemara that discusses the dispute between Rabbi Yehuda and the Sages regarding the law of boshet in the case of a slave. The Gemara expands the discussion to include other halakhic realms connected to the phenomenon called "brotherhood." Learn the Gemara on p. 88a: "Mai ta'ama de-Rabbi Yehuda" until "cheresh ve-katan pegi'atan ra'a," with Rashi; Tosafot (s.v. yatza, s.v. dikhtiv, s.v. she-ken, s.v. ela); Rambam, Hilkhot Edut 9:4.

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