Atonement for a person who causes an injury; permission to strike another person (92A, 93a)

  • Rav Shmuel Shimoni

 

 

I. Atonement for a person who causes an injury

 

            We learned in the mishna:

 

Even though the offender pays him [compensation], the offense is not forgiven until he asks him for mechila (pardon), as it says: "Now therefore restore the man's wife" (Bereishit 20:7). From where do we learn that should the nichval (injured person) not forgive he would be [labeled as] cruel? As it says: "So Avraham prayed unto God and God healed Avimelech, etc" (ibid. v. 17). (92a)

 

            A chovel (one who purposefully causes an injury to another person) is a sinner, and in addition to any chiyuv mamon (monetary obligation) he may have, with which we have dealt at length throughout the chapter, he must atone for his sin. In this framework he must seek mechila from the nichval. We are not dealing with a novel idea unique to chapter Ha-Chovel, but rather with a principle that was already taught in a more general manner a mishna in tractate Yoma:

 

For transgressions between man and God Yom Kippur procures kappara (atonement), but for transgressions between man and his fellow Yom Kippur does not procure any kappara, until he has pacified his fellow. This was expounded by Rabbi Elazar ben Azarya: "From all your sins before the Lord shall you be clean" (Vayikra 16:30), i.e., for transgressions between man and God Yom Kippur procures kappara, but for transgressions between man and his fellow Yom Kippur does not procure kappara until he has pacified his fellow. (85b)

 

            The same principle is operative in both mishnayot, but there is a difference as to the initial assumption that is being negated. The mishna in Yoma contends with the initial assumption that one can suffice with the means of procuring kappara for transgressions between man and God, e.g., Yom Kippur, whereas our mishna contends with the initial assumption that one can suffice with the laws of Choshen Mishpat and see the monetary compensation as solving the entire problem.

 

[A Baraita that we will see below says: "Even if the offender should bring all the rams of Nevayot in the world, the offense would not be forgiven until he asks him for mechila." This can be seen as a continuation of our mishna and the first part of the Baraita, that is, that we learn from there that even after payment is made, there is no kappara, and even if he gives his victim all the rams of Nevayot, that would not suffice (as the Ra'avad says: "Even if he gives him all the money in the world… and even though Avimelekh gave Avraham a thousand pieces of silver, sheep and oxen…"). However, the expression "rams of Nevayot" usually refers to sacrifices, i.e., to a clear instrument of kappara belonging to the realm of relations between man and God. This is the understanding of the Rambam: "Even if he sacrificed all the rams of Nevayot" (Hilkhot Chovel u-Mazik 5:9).]

 

            The laws derived from these mishnayot are codified by the Rambam both in Hilkhot Teshuva and in Hilkhot Chovel u-Mazik. Already in the opening halakha of Hilkhot Teshuva the Rambam mentions the law governing a chovel or mazik (damager, usually of property), but there the context is not kappara, but rather viduy (confession): "Similarly, a chovel or mazik, does not attain kappara, even though he pays him what he owes until he confesses and makes a commitment never to do such a thing again, as it is stated: 'Any of the sins of man.'" We learn that not only is a chovel or mazik a sinner who requires kappara, but the payment that he makes is also a condition for his kappara, only that it does not suffice, and he needs also to confess and commit himself never to do it again.

 

I do not think that the essence of the payment is to be part of the kappara process. Its basic essence is to fix the damage and restore the loss to the victim (see the wording of the Rambam, Hilkhot Nizkei Mamon 2:10: "Whenever a person must pay full damages, the payment is considered to be a chiyuv mamon that he is liable to pay, as if he had borrowed [money] from the other person whom he must pay"). However, a basic condition for kappara is that the sinner should begin with the best possible repair of the damage for which he is responsible, and in our case that means he should make payment. Attempting to achieve kappara before such payment is made is like "immersing in a ritual bath with a creeping animal in his hand." If, however, the offender is poor and lacks the means with which to pay, it may be assumed that it suffices for him to act to the best of his ability, and that the gates of teshuva (repentance) are not closed before a poor person.

 

            In the continuation of Hilkhot Teshuva, the Rambam cites the law recorded in the mishna in Yoma:

 

Teshuva and Yom Kippur only atone for sins between man and God; for example, a person who ate a forbidden food or engaged in forbidden sexual relations, and the like. However, sins between man and man; for example, a chovel, someone who curses another person, steals from him, or the like, will never be forgiven until he gives the other person what he owes him and appeases him.

Even if a person restores the money that he owes [the person he wronged], he must appease him and ask him to forgive him.

Even if a person only upset another person by saying [certain] things, he must appease him and approach him [repeatedly] until he forgives him.

If the other person does not desire to forgive him, he should bring a group of three of his friends and approach him with them and request [mechila]. If [the wronged party] is not appeased, he should repeat the process a second and third time. If he [still] does not want [to forgive him], he may let him alone and need not pursue [the matter further]. On the contrary, the person who refuses to grant mechila is the one considered as the sinner.

[The above does not apply] if [the wronged party] was one's teacher. [In that instance,] a person should continue seeking his mechila, even a thousand times, until he forgives him. (2:9)

 

            Among the examples of interpersonal transgressions the Rambam lists injury, but in contrast to 1:1 he omits damage. The Rambam reiterates that tashlum (payment) is a condition for kappara, and here he adds that ritzuy (to appease the injured party and ask his mechila) is also necessary. These two elements – tashlum and ritzuy – characterize the kappara process regarding interpersonal transgressions.

 

            The distinction between chovel and mazik that is merely alluded to here is stated explicitly in Hilkhot Chovel u-Mazik 5:9-10:

 

A mazik cannot be compared to a chovel. When a mazik pays the nizak (damaged party) what he is obligated to pay him, he receives kappara. In contrast, when a chovel pays him the five assessments, that alone is not sufficient to generate kappara. Even if the chovel sacrifices all the rams of Nevayot, he cannot generate kappara, nor is his sin forgiven until he asks the nichval to forgive him.

It is forbidden for the nichval to be cruel and not to forgive the chovel. This is not the course of behavior for a descendant of Israel.

Instead, since the chovel asks and pleads of him for mechila once or twice, and he knows that he has repented from his sin and regrets his evil deeds, he should forgive him. Whoever hastens to grant mechila is praiseworthy and is regarded favorably by the Sages.

 

            Once again it is emphasized that the payment is part of the kappara process both in the case of a chovel and in the case of a mazik (and it is even found in a certain succession together with the offering of the rams of Nevayot, though we emphasized earlier that the primal essence of the payment is not kappara).[1] But here it is clearly stated that in the case of damage, payment suffices, and once payment is made, kappara is achieved.

 

Why is this so? As it would appear from the mishna in Yoma and the words of the Rambam in Hilkhot Teshuva, this is not a special stringency in the case of a chovel, but rather a special leniency in the case of a mazik. What is more, it stands to reason that we are not dealing here with all cases of a mazik, because the Rambam in Hilkhot Teshuva says: "Even if a person only upset another person by saying [certain] things, he must appease him and approach him [repeatedly] until he forgives him," and it stands to reason that if a person causes damage with the intent of doing harm this falls into the category of "one who upsets another person," and this would require asking for mechila. We are dealing here with a special leniency in the case of a mazik with no intention of harming the other person. This leniency seems to stem from the fact that this is essentially a monetary prohibition, and the payment repairs the offense.

 

            [We stated earlier that if the person who caused the damage or injury is poor and unable to pay, it stands to reason that the gates of teshuva are not closed to him, and that if he does all that is in his power to make amends and atone for his sin, he achieves kappara. However, in light of the Rambam's novel position concerning damage, it stands to reason that a poor person who caused damage does not enjoy the special leniency regarding damage, and that he must seek the victim's mechila, because the damage was not repaired.]

 

            It is also possible that the nature of the prohibition to cause damage is different when it is accompanied by payment. For example, the Mabit maintains (Kiryat Sefer, Hilkhot Nizkei Mamon 5) that "the prohibition falling upon a person to cause damage and pay for it seems to be by rabbinic decree." He implies that the prohibition to cause damage and without pay is by Torah law, and not because non-payment of his debt is considered theft, but because the damage itself is forbidden by Torah law when it is not accompanied by tashlum. When the damage is accompanied by tashlum it is less severe conduct, which is only forbidden by rabbinic decree. The Mabit's position is exceptional, because it is generally assumed that the prohibition to cause damage is by Torah law even when the mazik pays. But the principle regarding the difference in the nature of the prohibition might be accepted by other authorities.

 

            We saw earlier the Rambam's words in Hilkhot Teshuva 1:1: "A chovel or mazik does not attain kappara, even though he pays him what he owes until he confesses." It is clear that even after payment is made, teshuva and viduy are still necessary, and tashlum does not repair all the damage caused by the sin. It is, however, possible that as far as the injury caused to the other person, payment rectifies the situation.

 

            From where does the Rambam learn this leniency in the case of mazik? As it would appear from his wording in Hilkhot Chovel u-Mazik ("Even if the chovel sacrifices all the rams of Nevayot, he cannot generate kappara"), the source is the baraita in our passage. Let us examine more closely what it says:

 

All these fixed sums stated above[2] specify only the payment [civilly due] for boshet (humiliation). For regarding his tza’ar (pain), even if the offender should bring all the rams of Nevayot in the world, the offense would not be forgiven until he asks him for mechila.

 

            The Rambam apparently understood that "boshet" is imprecise,[3] and that what it means is that the payments relate to the various types of damage caused to the nichval, but not to "his tza’ar," i.e., the special anguish that he has owing to the injury. The obligation of ritzuy relates to this anguish, and not to the very fact that the chovel committed a transgression when he caused the injury. In the case of a mazik, on the other hand, the damage constitutes the entire picture, and therefore there is no obligation to seek mechila. Robbery, cursing, and upsetting are similar, in this respect, to injury.

 

            However, the commentators ad loc. appear to have understood the baraita differently. Rashi explains that we are dealing with a distinction between the two components of harm that are found in boshet.[4] One element is the "boshet," while the other element is the "tza’ar, that he worries about his boshet." It seems from Rashi that boshet refers to the lowering in social standing of the humiliated party, whereas tza'ar refers to the feeling of suffering experienced by the humiliated party. The money paid for boshet relates to the objective lowering of the victim's status, and it can cover the damage, but it cannot compensate the victim for his anguish, and for this we need ritzuy of the humiliated party.

 

Two points should be considered regarding the viewpoint of Rashi:

1) The passage on p. 86b raises the question whether the payment for boshet is for the victim's disgrace (ziluta) or for his insult (kisufa). When we learned that passage we proposed several understandings of that question. The simplest understanding is that ziluta refers to the objective diminishment of the victim's social standing, while kisufa refers to his sense of embarrassment. As we noted in the earlier shiur, according to Rashi on our passage it turns out that the Gemara concludes that the payment for boshet is for the ziluta, while the kisufa requires a request for mechila.

 

2) Despite a certain difference between Rashi and the Rambam, the core is the same. Though Rashi understands that we are dealing with cases where there is only boshet, the assumption is that in the case of an injury for which there is tashlum, the tashlum suffices to repair the injury and allow for full teshuva without having to ask the victim for his mechila. If we examine this in relation to the other payments made for an injury, we see that regarding the nezek, ripuy (healing) and shevet (unemployment), we are dealing with real damage for which money can compensate (and to our surprise, we find now that the payment for boshet is closer to these payments than to the payment for tza’ar, for the payment for boshet relates to an objective injury). As for the payment for tza'ar (in the sense that it is generally used in our chapter, i.e., physical pain), we are dealing with an injury the essence of which is individual suffering, but for this compensation is made in the framework of the payment for tza'ar, that we try to restore the nichval to the place he would have been were it not for the injury (giving him a sum of money in exchange for which he would have been willing to suffer this pain). Therefore, the only injury for which compensation is not received is the boshet (this is explicitly stated by the Tur, 422: "Even if the chovel paid him for all the five things, he does not achieve kappara for the tza'ar of the boshet that he caused him until he appeases him that he should forgive him"). It is possible that also according to the Rambam, it is the unique anguish in the case of chovel that goes beyond the damage of a mazik that obligates ritzuy beyond tashlum.

 

            Another explanation that distinguishes between different injuries finds expression in the words of the Shita Mekubbetzet, ad loc.:

 

A Gaon explained as follows: Even though he gives him the five payments, he is not forgiven until he asks him for mechila, etc. But as for his tza'ar, even though he pays him for his tza'ar, even if he gives him all the money in the world, he is not forgiven until he asks him for mechila, because a person does not waive distress to the body for the reward of money.

 

            It seems from here that "tza'ar" is being used in the ordinary sense of the word – payment for physical pain. The implication is that regarding nezek, shevet, ripuy and boshet, the assumption is that the nichval forgives when he accept the tashlum, and tza'ar is unique in that a person does not forgive such an injury in exchange for money (despite the attempt to determine the sum in exchange for which the victim would willingly agree to suffer the injury), and therefore ritzuy is necessary. This implies that every injury requires tashlum and also ritzuy, only that regarding the other payments the assumption is that there is ritzuy. This is in contrast to the position of Rashi and the Rambam, who imply that the obligation of ritzuy relates only to those components of the injury for which there is no monetary compensation.

 

            A different understanding of the Gemara, according to which we are not dealing with a distinction between the different aspects of the injury, was raised by the Ra'avad in his novellae:

 

Boshet is like an illness, for his face turned green, his blood grew dense, all his organs weakened and his heart filled with worry. And with the sums mentioned in the mishna, they said for what sum of money a person would be willing to suffer such an illness. But one whose intention it was to cause pain does not fulfill his obligation to heaven until he appeases the other person, and the latter will pray for him, since he sinned by causing pain to his fellow.

 

            According to the Ra'avad, the payment for boshet is for the suffering of the humiliation. Tza'ar, on the other hand, is not a different component of the injury caused to the victim, but rather an attitude toward the offender's sin: "whose intention it was to cause him pain," and who "sinned by causing pain to his fellow." This sin requires kappara, and the offender must seek his victim's mechila so that he will help him achieve kappara. The assumption is that all aspects of the injury were already repaired, but this is not enough to achieve kappara for the chovel, and therefore he needs the nichval's mechila [according to the simple understanding of the Ra'avad's opinion, this is only when the offender intended to cause the victim pain].

 

            [As we noted in the shiur on boshet, even according to the Ra'avad there is a certain parallel between the discussion here and the Gemara's question regarding ziluta and kisufa. This is because the Ra'avad there explains kisufa as the humiliation suffered by the victim, and ziluta as the defect in the conduct of the offender, that he belittles the other person, and one is not permitted to belittle another Jew. Taking the two passages together, our passage decides that the payment for boshet is made for the kisufa, and to repair the ziluta it is necessary to ask for his mechila, i.e., the opposite of Rashi. Of course, both the conclusion according to Rashi and that according to the Ra'avad require further examination, for it is strange to say that the Gemara on p. 92a decides an uncertainty on p. 86b, without the Rishonim feeling any need to comment on it.]

 

            These different understandings bring us to consider the foundation for the need to seek the victim's mechila. From a young age we have been taught, and so we raise our own children, that when we hurt another person, we must ask for his mechila. And indeed, so it is stated in the mishna in Yoma and in our passage. It seems, however, that there is room to explore the matter. A chovel, and for this purpose anyone who commits an interpersonal transgression, commits a two-fold offense: He causes damage to the other person, and he sins. Therefore, on one level he must repair to the best of his ability the harm done toward the other person, and on a second level he must repent for his sin and do whatever he can to achieve God's mechila. As we saw over the course of the shiur, it stands to reason that there is a connection between these two levels of activity, and repairing the harm is a basic condition for the teshuva process, for if not it is like immersing in a ritual bath with a creeping animal in his hand. However, it is not clear how the need to ask for the other person's mechila fits into this. It would seem sufficient to repair the harm caused to the other person through the payment and the seeking of God's mechila.

 

            One answer to this question is that asking for the other person's mechila belongs to the level of repairing the harm. The mental rehabilitation of the victim requires more than just monetary compensation; he must be appeased and made to understand that the offender is sorry about his actions and wishes to make things better. Therefore, just as it is impossible to confess and achieve kappara before making payment, so this cannot be done before he asks the other person for his mechila.

 

            Here we can also integrate some of the opinions that we have already seen. According to the Gaon, the assumption is that in most cases of injury, the victim is appeased when he receives compensation, and it is just with respect to the physical pain that he is not appeased, and for this asking his mechila is necessary. According to our understanding of Rashi and the Rambam the monetary compensation constitutes a sufficient repair, and there is no further need for ritzuy, only that there are some aspects of the injury for which there is no monetary compensation, and regarding them ritzuy is necessary.

 

            A different answer is that asking for the victim's mechila is needed in addition to the repair of the harm, in the framework of the offender's kappara. Why is this? One possibility is that this brings about an improvement in the offender's character, for only when the offender turns to his victim and seeks to appease him does he repair the offensiveness in his character; this cannot be achieved by avoiding the victim and turning straight to God that He forgive him on the level of the relationship between him and God.

 

Another possibility, which is less understandable to me, but it may be suggested based on the wording of our mishna and other sources, is that the victim's mechila is part of the offender's kappara process – it is not enough to say that the offender caused harm to the other person, and sinned against God. The offender sinned against the other person and against God, and he cannot receive God's mechila before being forgiven by the other person. As it were, God bestowed of His authority onto each and every person, so that an injury caused to a person is first and foremost a sin committed against that person, and the power of mechila is put in his hands. Therefore, if he does not forgive, he truly hinders the offender's kappara, and, as stated in our mishna, he is cruel.

 

[The Rambam writes that not only is he cruel, but he too becomes a sinner. It is possible that essentially the power of mechila is in the hands of the victim, only that his cruelty removes it from him and rolls the sin upon him, and it is also possible that from the outset the power of mechila is not in the victim's hand, and that we are dealing – as suggested above according to the Rambam – with a repair of the harm caused to the victim.]

 

            Here is the place to consider the position of the Ra'avad, that all of the components of the injury have found compensation, but still it is necessary for the offender to atone for his intent to cause injury to another person. It would appear from his words that this is not a continuation of the repair of the injury, but rather kappara for the offender, according to the second approach, whether to repair the soul of the offender, or because only the victim is capable of granting mechila (this seems to fit in better with the wording of the Ra'avad).

 

            A point for further thought: See the halakha cited by the Rambam in Hilkhot Teshuva 2:11. How can we understand it in accordance with the various opinions?

 

II. "Tear my garment, break my pitcher" – monetary damage with the permission of the NIZAK

 

            The last clause of our mishna deals with damage caused with the permission and encouragement of the nizak. Before we deal with the law governing injury in such a context, let us examine the law in the case of simple monetary damage. Here the mishna establishes that if the plaintiff said: "Do this on the understanding that you will be exempt," the offender is exempt (and in the Gemara on p. 93a it is explained that this added clarification is only necessary in a case where the object came into his hands for the purpose of safekeeping). What is the basis of this exemption?

 

            It would seem that there is room to base the exemption on an important principle in the laws of damages, namely, that a person who caused damage is not liable for damage for which the nizak is responsible, for "he caused himself the damage," and he can not come with claims to the offender. This, for example, is the explanation offered by the Ramban for the law that we learned in the Yerushalmi, at the end of chapter 2, according to which a person who went to sleep, and another person fell asleep next to him, and the first person rolled over and caused damage to the second person, the first person is exempt. The Ramban (Bava Metzia 82b) explains that a mazik is liable even in a case of ones (unavoidable accident), but here the offender is exempt, "because the other person acted wrongly himself."

 

Is there room to propose this explanation here, and say that one who told another person to damage his property "caused himself the damage?" It stands to reason that the answer is no. This principle regarding the negligence of the nizak rolls the responsibility for the event onto him; but there is no room for such an idea when we are dealing with the conscious and intentional action of the mazik. When a person intends to do the action that he is doing he cannot exempt himself from responsibility with the argument that the nizak was himself negligent. We are not dealing here with negligence, but rather with intentional damage. We must, therefore, look for other explanations of the law in the mishna.

 

            The Tosafot in Ketubot (56b, top of the page) propose two different explanations for the law in our mishna. In order to understand their positions, let me preface by saying that there is a general rule according to which "one who stipulates against something that is written in the Torah, his stipulation is invalid." The Tannaim disagree whether the stipulation is invalid even in a monetary matter (Rabbi Meir) or perhaps in a monetary matter the stipulation is valid (Rabbi Yehuda). The Tosafot ask according to Rabbi Meir, how he would explain the law in our mishna:

 

Since the rule regarding a stipulation against something that is written in the Torah applies even to monetary matters… it is difficult, for regarding damage, let us say that he cannot waive his rights, for he is stipulating against something that is written in the Torah. And should you say, so indeed, but surely we learned in a Mishna in chapter Ha-Chovel: "'Tear my garment and break my pitcher, on the understanding that you will be exempt,' he would be exempt."

 

The answer given by the Tosafot (in the name of Rabbeinu Elchanan) is:

 

There too if he said: "Tear and break with the understanding that I will not have a claim of damages against you," this would be considered a stipulation against what is written in the Torah; but he can waive [what is his].

 

We see that according to Rabbi Meir a person cannot stipulate against what is written in the Torah even in a monetary matter, and if the law of the Torah is that an act of damage imposes liability, the nizak cannot change this by way of his agreement. However, one of the halakhic tools found in monetary law is that of waiving. Therefore, the person who suffered the damage can waive the monetary debt to him, just like a creditor can waive the debt he is owed. Of course, the underlying assumption of this explanation is not so simple – we must assume that a person can waive a debt that has not yet been created (see Rema 309:1: "Just as one cannot transfer ownership of something that has not yet come into the world, so too he cannot waive something that has not yet come into the world"). Because of this difficulty, the Chazon Ish writes that in fact the Tosafot exceedingly restricted the application of the law in our mishna: "Where he waives immediately after the breaking… the owner of the garment can change his mind immediately after the breakage and claim the damage.[5]

 

The words of the Tosafot teach us about another explanation of the law in our mishna. According to Rabbi Yehuda the mishna is based on a person's capability to stipulate against what is written in the Torah in monetary matters; what this means according to the Tosafot is not a waiver of a chiyuv mamon, as this is possible even according to Rabbi Meir,[6] but rather giving up "the law of damage." The Torah authorized a person who enjoys a certain right to fashion the law in a different manner, and thereby bring about that certain laws favorable to his cause should not apply. Therefore, the nizak is able to neutralize the application of the laws of damage in a certain case [as stated, this is according to the position of Rabbi Yehuda; see what the Tosafot write in the continuation, "ve-od yesh lomar"].

 

The Ketzot ha-Choshen (246, 1) suggests a third, more reasonable approach. In his view, there is no need to see this as a stipulation or a waiver. We are dealing with a principle that stems from the laws of damage – mazik be-reshut (an act performed on property with the permission of its owner) is not defined as an act of a mazik:

 

Since he acted with the permission of the owner, he is automatically exempt. The Torah only made a person liable for damage in a case where he acted on his own; but if he acted with the owner's permission, there is no liability whatsoever.[7]

 

III. "Put out my eye, cut Off my arm" – injury caused with the permission of the NICHVAL

 

            Now let us go back to the previous law in the mishna, which states that if a person says: "On the understanding that he be exempted," the offender is still liable – injury caused with the permission of the nichval. From a simple reading of the mishna, it may be concluded that there is a fundamental difference here between a mazik and a chovel. Indeed, it is very reasonable that such a difference exists with respect to the prohibition violated by the offender. Regarding damage there is no prohibition to cause damage, as the damage was caused with permission, and the simple understanding is that there is no damage whatsoever, as argued by the Ketzot that we saw earlier. It is possible that there is a violation of the prohibition of bal tashchit (wasteful behavior, discussed in shiur 28b), but this prohibition is not connected to the relationship between the offender and the victim.

 

In contrast, causing injury is a prohibited act; even a chovel be-atzmo (person who causes an injury to himself) violates the prohibition, and it is possible that it is the very same prohibition that is violated by someone who injures another person (see shiur 20 on chovel be-atzmo). Therefore, even a person who caused an injury to another person transgresses this prohibition, and the injured party's consent does not cancel the prohibition (though it is possible that there will not be lashes in such a case, because the injury was not caused "in strife"; see our explanation of the position of the Rambam in the aforementioned shiur). R. Shlomo Zevin[8] held firmly to this position, basing it on his understanding that a person lacks ownership over his body, and adduced support for it from the words of the Shulchan Arukh Ha-Rav: "One is forbidden to strike another person, even if he grants him permission to strike him, because a person does not own his body at all to strike it."[9]

 

            Should this difference with respect to the prohibition find expression also regarding payment? If the exemption regarding mazik be-reshut is based on a waiver of the debt, there is no fundamental reason to distinguish between a mazik and a chovel. The same is true if we are dealing with a stipulation regarding something that is written in the Torah with respect to a monetary matter – even though there is a prohibition here and not just a monetary matter, the stipulation relates to the chiyuv mamon, and it would be difficult not to define this as a monetary matter.[10] As for the rationale proposed by the Ketzot ha-Choshen, that a mazik be-reshut is not considered a mazik, there is room to say that here it is different, because he is considered a chovel, with respect to the prohibition. But this is not necessary, for at the end of shiur 20 regarding one who causes an injury to a non-Jewish slave, we saw that a chovel be-atzmo is not considered a chovel with respect to the monetary liability, but only regarding the prohibition. Therefore there is room to say that even if a person who causes an injury with permission is considered a person who causes an injury with respect to the prohibition, regarding the monetary liability such a case in not considered one of injury.

 

            Therefore, it is not surprising that the Gemara on p. 93a asks about our Mishna: "Why is the rule in the former case different than that in the latter case?" and it does not answer that there is a fundamental difference between the two realms. As we have seen, the grounds for exemption in the latter clause regarding damage might apply even in the former case regarding injury.

 

            In its answer the Gemara proposes three explanations. The first explanation is: "Because no man truly pardons the wounding of his principal limbs." According to the simple understanding, the difference lies in the fact that regarding injury the waiver is not genuine. It is possible that in practice we are dealing with a hard and fast rule, so that even if one takes an oath that he is ready to waive the money owed him,[11] his opinion is nullified. But this is not because the Torah decides that in principle a person does not have the authority to waive, but only that in practice a person does not waive. (See the wording of the Rambam, Hilkhot Chovel u-Mazik 5:11: "The rationale is that it is well known that a person does not genuinely desire this.") This point is even stronger in the third explanation suggested by Rabbi Yochanan, that "sometimes the term 'yes' means 'no'" (see the explanations given by the Rishonim for this explanation).

 

            It is possible that the Gemara's second explanation, that of Rabbi Sheshet and Rabbi Oshaya, introduces a fundamental limitation of the victim's ability to waive, but this too is not for the reason we might have expected, but for a different reason: "Because of the discredit to the family." The Ra'avad suggests an understanding that here too we are dealing with an assessment of the victim's true intention: "Since there is discredit to the family, there is never a [true] waiver." But according to his first understanding, we are dealing with a real limitation of the victim's authority: "Owing to the discredit to the family, he may not waive."

 

            What is the significance of this law, that the discredit to his family prevents the victim from granting permission? Is it the family that can submit a claim, if only for the boshet, in court? It stands to reason that it cannot. When we encountered a similar idea in the past, "humiliation of the family" (above, 88b), we explained that part of the damage suffered by the person who was humiliated is that the members of his family are humiliated by what happened. Here, however, this does suffice, for here recognition is give to the damage caused to members of the family in such a manner that prevents the victim from waiving and granting permission to cause him an injury. It stands to reason that while it is the person suffering the injury who is entitled to make a claim, since he cannot waive their honor, he cannot grant permission and remove the assault from the category of injury. Therefore, we are dealing with an event that is defined as injury, and so automatically all of the Torah's liabilities regarding injury apply (see Tosafot, s.v. mishum, that even the payment for pain must be made).[12]

 

            In any event, even though it stands to reason that there is a fundamental difference between monetary damage, regarding which the victim owns the right to decide about the damage in absolute manner, and injury, regarding which a person does not fully own his own body; nevertheless, it would appear that this difference does not underlie the distinction found in our mishna.

 

(Translated by David Strauss)


[1] The Rosh Yeshiva, HaRav Mosheh Lichtenstein, mentioned in this context, that it would appear from the Rambam, based on the Gemara at the beginning of our chapter, that the payment made for the nezek (depreciation resulting from the injury) has the nature of a kofer (ransom): "Implied is that no kofer may be paid for a murderer alone, but a kofer may be paid for causing a loss of limb or other injuries" (Chovel u-Mazik 1:3). In his view, this is the reason that the mishna in chapter Ha-Chovel must teach us in a special manner – over and beyond the ordinary rule in tractate Yoma – that a chovel must also seek mechila, because we might mistakenly have thought that when the payment is a kofer there is no need for any additional kappara. In his view, the Halakha teaches us that the payment of a kofer is not enough, because the kofer atones for the prohibition between man and God – an injury to a human body that was created in the image of God – but it is still necessary to achieve kappara for the sin between man and his fellow, and for this we need ritzuy and mechila. It should, however, be noted that it is clear from the Rambam that the payment made by a mazik is part of the actual kappara process just like the payment made by a chovel.

[2] Rashi explains that "all these stated above" refers to the fixed sums listed in the mishna above, p. 90a. But it would seem that this is imprecise, and that the same applies to ordinary payments for boshet.

[3] It should be remembered that if the Rambam agrees with what Rashi says in the previous note, that "all these stated above" refers to the fixed sums listed in the mishna on p. 90a, it has importance for the dispute between them that we saw a few weeks ago regarding how to understand that mishna. According to Rashi, the fixed sums are payments for the boshet, whereas according to the Rambam, they are payments for all the liabilities of a chovel.

[4] As explained in the previous note, Rashi is consistent with his own position that "all these stated above," i.e., the fixed sums, are payments for boshet alone.

[5] Chazon Ish, Choshen Mishpat, Likkutim, sec. 12, para. 13.

[6] Compare with the words of the Rashba, Ketubot 56a, who bases Rabbi Yehuda's position on the laws of waiver; and see Ketzot ha-Choshen 209, no. 11, who had reservations about the Rashba's position on this point.

[7] In the continuation of his words, the Ketzot uses a formulation that I rejected above, that the victim "caused the damage to himself," but it would seem from the context that this is not what he means.

[8] R. Sh. Y. Zevin, Le-Or ha-Halakha (2004), pp. 403-428. He disagrees at length with Rav Shaul Yisraeli, Ha-Torah ve-ha-Medina, vol. 5-6, p. 107; vol. 7-8. pp. 331-336.

[9] Choshen Mishpat, Hilkhot Nizkei Guf ve-Nefesh, 4. See, however, the novel position found in that same section: "It is forbidden to strike one's servant, even if he disobeys, unless he is a gentile slave. If he stipulated with him at the outset when he hired him that he would be permitted to strike him if he disobeys, his granting permission is effective, since it is to his favor, so that he should be hired." This is not at all simple, but this is not the forum to discuss the matter at greater length.

[10] According to the simple understanding, this is true even if we understand that the payments for the nezek, tza’ar, and boshet are a kenas (penalty). However, Responsa Sho'el u-Meishiv maintains that even if it is possible to stipulate about what is written in the Torah with respect to monetary matters, this cannot be done in the case of a kenas: "For this is in monetary matters, because a person can do with his money as he pleases. But a kenas, where the Torah wished to penalize the person who transgressed so that he not sin again, if so, he cannot waive the kenas, as this is an instance of stipulating about something that is written in the Torah.

Also according to what the Ramban writes in his novellae to Bava Batra 126, that a person can waive and stipulate in monetary matters because the Torah only imposed liability where he agrees, and therefore this applies to a chiyuv mamon. But a kenas where the Torah wished to penalize him, while it is true that the Torah said that the payment should be made to the person whom he had wronged, the payment does not depend on his will, as it is a kenas that the Torah imposed" (mahadura I, vol. 2, no. 103). This interesting argument raises weighty questions.

[11] See Even ha-Ezel, Hilkhot Chovel u-Mazik 5:11.

[12] See the article by Menachen Edelman in Daf Kesher 1237 "Bushot la-Mishpacha".