Chapter Ha-Chovel - Summary

  • Rav Shmuel Shimoni

 

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IN LOVING MEMORY OF

Jeffrey Paul Friedman

August 15, 1968 – July 29, 2012

לע"נ

יהודה פנחס בן הרב שרגא פייוועל

כ"ב אב תשכ"ח – י' אב תשע"ב

ת.נ.צ.ב.ה

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Introduction

 

            Over the course of the year we dealt at great length with various aspects of the laws of damage. During the first half of the year we studied chapter Ha-Kones, which is less focused on a single central issue, and afterwards we moved on to chapter Ha-Chovel, which focuses on the laws governing one who causes a physical injury to another person (a chovel). By the nature of things, we cannot address in the framework of this review shiur all of the different issues with which we have dealt. The shiurim are available in the archives of the VBM, and whoever is interested in them can go and study them there.[1] We shall, however, try to review the general principles arising from the study of chapter Ha-Chovel.

 

            At the outset I wish to note a point that was emphasized in the shiurim on chapter Ha-Kones (shiur 10). We related there to the position that sees the laws governing damage as a quasi-punishment that is cast upon the person who caused the damage owing to his negative conduct, whether as recompense or as a deterrent. We had difficulty understanding this position. Though it is possible that the justification for demanding compensation from the person who caused the damage is based on his guilt, it is difficult not to see the compensation of the person who suffered the damage as the primary and justified goal of the laws of damage. If a person's house was burned down by another person, he is entitled to compensation for the damage, and there is no need for the idea of punishing the person who caused the damage to justify the fact that we come to him with a claim.

 

            All of this applies to strictly monetary damage, as well as to bodily damage caused by animals. When we come to the laws of chovel, the picture becomes more complicated, and the dimension of punishment may enter into the picture in certain cases. Nevertheless, my inclination over the course of these shiurim was to emphasize the centrality of the monetary dimension even when we dealt with a chovel. The victim in such a case suffers several types of damage, the primary one from an economic perspective being the impairment of his ability to work, and we must not make light of this damage and the need to repair it.

 

I. The prohibition to cause an injury

 

            The infliction of an injury includes, alongside its ramifications in the realm of Choshen Mishpat, the transgression of a clear Torah prohibition. In contrast to the general prohibition to cause damage to another person's property, the source and force of which are not absolutely clear, one who causes a physical injury to another person transgresses a well-defined Torah prohibition, albeit a somewhat surprising one: "Forty stripes he may give him, and not exceed" (Devarim 25:3). One who transgresses this prohibition can be liable for lashes, as the law is that if one strikes another person with a blow that does not warrant a peruta to be paid in recompense, he is liable to lashes (Rambam 5:3). Here there is a difference between the prohibitions against robbery and theft, where there is no flogging in the case where less than the value of a peruta was stolen, as these are fundamentally monetary prohibitions, and the prohibition against injury, which is not essentially a monetary prohibition, but rather relates to the blow to the body, and therefore it is not defined by the measure of a peruta.

 

            When a person strikes another person with a blow that warrants a peruta or more to be paid in recompense (for one of the five payments made in the case of injury[2]), he is not liable for lashes owing to the principle that "a person does not receive lashes and also pay." Usually this rule means that the person receives the lashes, and does not pay, but in the case of injury this is not the case, because "the Torah explicitly included a chovel for payment" (Ketubot 32b), and therefore he pays and does not receive lashes. The Tosafot (ibid. 32a, s.v. ve-i) explain that even though payment is more lenient than the punishment of lashes, the Torah preferred in this context to compensate the victim, rather than to punish the offender: "Because the Torah cares about the money of the victim."

 

            We briefly discussed the parameters of this prohibition in some of the later shiurim. In shiur no. 27 we saw a disagreement on p. 91b, whether there is a prohibition even in the case of self-inflicted injury, and that most of the Rishonim rule that inflicting an injury upon oneself is in fact forbidden. However, a simple reading of the Gemara teaches us that this prohibition is not by Torah law, or at the very least it is not part of the prohibition of "and not exceed." This is the position of some of the Rishonim. As for the Rambam (5:1-3), however, our inclination was to understand his position differently.[3] The Rambam implies that the sources that the Gemara proposes for the prohibition to cause an injury to oneself are merely indications that the same prohibition to cause an injury to another person applies to one who causes an injury to himself. Clearly there is no monetary liability in the case of a self-inflicted injury, and in the past (shiur 20) we even suggested that with respect to the monetary dimension, one who caused an injury to himself does not fall into the category of who causes an injury. But the Rambam bestows independent standing to the prohibition against causing an injury, and to a certain degree detaches it from the category of interpersonal violence and focuses on the assault perpetrated against a body that was created in God's image. We suggested, however, that according to the Rambam, there are two different laws in the prohibition against causing an injury. One relates to the impairment of the image of God, and is not conditioned on violence, and therefore it applies even to a person who causes an injury to himself, provided that there is some bodily injury. A second law relates not to one who injures, but to one who strikes another person. This is based not on the bodily damage that was caused, but on the assault itself, provided that it was violent in nature – "in strife." According to the Rambam, it is only regarding this law that there is liability for lashes, because the prohibition in the verse deals with one who strikes another person. Therefore, one who causes himself an injury is not liable for lashes, even though he violates the same prohibition.

 

            In the last shiur we discussed the laws of atonement for the chovel.

 

II. Depreciation resulting from the injury and the Loss of Livelihood

 

            From an economic perspective, the primary blow to the injured victim is, as was stated, the impairment of his ability to work. Two of the five components of the payments imposed upon one who causes an injury relate to this, and theoretically it would have been possible to suffice with one of them. How so? The payment made for shevet is a payment made for the loss of income, and from the passage on p. 91a we learn that we make use of the tool of assessment in order to evaluate the loss of income expected during the recovery period in accordance with its length. It is reasonable to say that shevet is not limited to the period of absolute inability to work, and that a person can be made held liable for causing partial loss of livelihood. Therefore, it would have been possible to assess the loss of income until the end of the expected work life of the victim.

 

The payment made for the nezek (damage), on the other hand, is payment for the depreciation in the value of the damaged object – the body of the person who suffered the injury, as a slave sold in the market.[4] Fundamentally, there is no reason that this depreciation should not take into account the expected loss of earnings during the recovery process (and as we saw in shiur 16, this indeed in the exceptional position of the Ba'al ha-Ma'or). Thus, we have two mechanisms for calculating the full loss in earning power: conducting a comprehensive assessment of the loss of earnings, and alternatively, a much cheaper mechanism, the depreciation in the victim's market value in a one-time sale as a slave, which is subject to market conditions.

 

            In practice, the Torah activates both of these mechanisms, and each one limits the use of the other. Since payment is made for the nezek, the liability for shevet relates only to the recovery period, and then too as a watchman over cucumber beds, and as the opening mishna explains this: "For there has already been paid to him the value of his hand or the value of his leg." The liability for the nezek, on the other hand, relates only to permanent damage (as stated the position of the Ba'al ha-Ma'or is exceptional).

 

In shiur no. 17, our inclination was to say that we are not dealing here with a general limitation in the laws of damage according to which temporary damage to an article does not incur liability, but rather that the liability for nezek is influenced by the liability for shevet, and that the latter covers the temporary damage. In this context we touched upon the position of Rava on p. 86a, which has been accepted as Halakha, according to which if an arm was broken but it will ultimately recover fully there is only liability for shevet (and we related there also to the dissenting opinion of Abaye); the position of the Ramban (Milchamot 30b in Alfasi) who uses the view of Rava to prove his opinion against that of the Ba'al ha-Ma'or, that the liability for nezek does not include compensation for temporary damage; and the position of the Ritzba, cited by Rabbeinu Peretz, that when a person causes an injury to an animal, in which case there is no payment for shevet, the liability for the nezek also includes compensation for temporary damage. [Other Rishonim, however, disagree with this approach.] That is to say, the novelty that the Torah introduced with respect to a chovel, that he is liable not only for the nezek, but also for that person's shevet, is restricted in its economic significance,[5] for it also limits the compensation that must be paid in the framework of nezek.

 

            Why did the Torah introduce – only in the framework of the severe case of a chovel – direct liability for shevet, and not include this in the liability for nezek? The Ritzba offers two reasons why the payment for the victim's nezek does not provide an exhaustive answer for the loss of work days. First, in the case of an expensive asset, such as a slave, the loss of two-month's worth of work does not significantly effect his value; this stands in contrast to an animal. And second, a person "does not stand to be sold." Therefore, the Torah introduced direct compensation for the victim's loss of earnings during his recovery period, which presumably yields a higher amount.

 

            Why did the Torah choose not to content itself with the payment made for shevet, and compensate the victim for his loss of earning power for the rest of his working years? Here we must return to the foundations of the liability for the nezek that we saw in shiur no. 13.

 

            In that shiur we examined the various suggestions put forward by the Gemara regarding the source of the law that "an eye for an eye" refers to monetary compensation, including the suggestion that we are dealing with "a kofer (ransom) for the principal organs." According to this suggestion, the appropriate punishment for one who causes an injury is in fact removal of the offender's parallel organ, only that in contrast to the punishment given to a murderer, in this case there is a kofer. This suggestion provides very strong meaning to the severity of the offender's actions and of the punishment that he deserves according to the plain sense of the verse. If we combine this with what was mentioned earlier, that fundamentally, one who causes an injury is liable for lashes for having violated the prohibition, "and not exceed," there is a certain difficulty, because for one action there is – if only on the conceptual level – two different punishments, and this is before we begin to deal with the compensation that must be given to the victim. It seems that the lashes serve as a punishment for the very fact that the person transgressed the word of God and violated a Torah prohibition; and an eye for an eye is a punishment that expresses the idea of "measure for measure" in the specific context in which the offender acted (this is not to say that it is a punishment that expresses the revenge taken by the victim). This principle finds expression in other ways as well, but this is not the forum to discuss the matter.

 

            In any event, "a ransom for the principal organs" means that the Torah replaces this punishment with monetary compensation. The Gemara states that this idea is particularly strong in the position of Rabbi Eliezer, and payment is made in accordance with the value of the eye of the offender, who, as it were, should have paid with his own eye, but he ransoms it with money. However, the basic idea remains in place, even though the Halakha is not in accordance with Rabbi Eliezer. The Rambam rules as follows:

 

The Torah's statement (Vayikra 24:20): "Just as he caused an injury to his fellow man, so too, an injury should be caused to him," should not be interpreted in a literal sense. It does not mean that the person who caused the injury should actually be subjected to a similar physical punishment. Instead, the intent is that he deserves to lose a limb or to be injured in the same manner as his colleague was, and therefore he should make financial restitution to him.

This interpretation is supported by the verse (Bemidbar 35:31): "Do not accept a ransom for the soul of the murderer." Implied is that no ransom may be paid for a murderer alone, but a ransom may be paid for causing a loss of limb or other injuries. (Hilkhot Chovel u-Mazik 1:3)

 

            The Rambam clarifies that theoretically the severity of the offender's actions justify that he should be subjected to a similar injury; and he argues that even the law in actual practice – the liability for payment – reflects the principle underlying the punishment: "He deserves to lose a limb or to be injured in the same manner as his colleague was, and therefore he should make financial restitution to him."

 

            The sharp halakhic expression of the Rambam's position that the liability for nezek serves as a punishment is his assertion (5:6) that the payment for nezek is considered a kenas (penalty), despite the fact that it is precise compensation based on market value (based on the view of the Ri Migash, and in contrast to the Ra'avad and the Ramban who disagree with him). But it may be asked: Granted that there is a special severity in the case of injury that justifies the imposition of a punishment, bodily or financial, on the offender; but why is the injury caused to the victim's body inferior to any other damage done to his property, which obligates compensation that falls into the category of a chiyyuv mamon (monetary payment) for the depreciation in value of the victim's property? Surely when an animal causes an injury to a person, its owner is liable to pay for the damage, like a slave sold in the market, as a monetary payment. Why then is the case of a chovel different? We are forced to say that there is nothing missing because of which there is no chiyyuv mamon, but rather there is something added. The monetary damage exists and it can impose liability in the regular channels, but the violent dimension on the interpersonal level with its special severity cancels the regular monetary perspective and shifts the law to the track of punishment. The ordinary law of damage could have applied here, but the special law of injury replaces it. (It stands to reason that this is limited to intentional injury, but the matter requires further study).

 

            This point arose in several contexts in which we saw that a person's body is essentially a monetary object, the damage of which leads to monetary liability based on the ordinary law of damage, only that the law of injury cancels the law of damage. For this reason we had our reservations about the Minchat Chinukh's novelty that the Rambam would concede that one who injures a slave is liable for the damage as a monetary payment, because here we are dealing with the plaintiff's property. We argued that everyone is the property of the plaintiff, i.e., of himself, only that the law of injury – owing to its severity, cancels the law of damage, and the same is true in the case of a slave. Only in a very specific case, that of a non-Jewish slave who inflicts an injury upon himself and is later emancipated (Tosefta 9:8), did we see (shiur no. 20) that the law of injury does not apply, because a self-inflicted injury is not considered an injury with respect to Choshen Mishpat, and the law of damage does apply because at the time of the injury the slave's body belonged to his master. We therefore concluded that there the law of damage remains in place, and the emancipated slave is obligated to pay his former master, based on the law of damage, as a monetary payment (and he is exempt from the other four payments).

 

            Here we come to the question that was raised above: Why does payment for shevet not suffice, so that the Torah had to introduce payment for the nezek? In shiur no. 13 we related to the question why the Torah replaced the punishment that the offender deserved to receive with a monetary punishment. We mentioned that for various reasons Rav Breuer, z"l, rejected the commonly heard argument that the Oral Law shows mercy to the offender and thus prevents his brutal punishment. According to him, the mercy is being shown to the injury victim, as his compensation is given priority over the offender's punishment. About this it should be noted that it would seem that even without the law that "an eye for an eye means monetary payment," the injury victim would be entitled to compensation for the damage, based on the explicit verse, "only he shall pay him for the loss of his time." As we saw, payment for lost time can provide full compensation for his loss of earnings over the course of his lifetime, and it is only the payment for the nezek that stops this: "For there has already been paid to him the value of his hand." Therefore, in the absence of payment for the nezek, the payment for shevet would have provided full compensation.

 

It seems that the Written Law involves two aspects: One aspect provides fitting punishment for the offender; this is the law of "an eye for an eye," according to its plain meaning. The second aspect provides fitting compensation for the victim; this is the liability for shevet in its most extreme formulation. Carrying out both aspects at the same time would be a perversion of justice, because it would turn out that the offender pays double for his actions. Therefore, the Oral Law combines the two aspects and balances one against the other. The liability for nezek is replaced by a kofer for the principal organs: in a certain sense this brings the compensation paid for an injury caused to a person closer to the ordinary concepts of damage, because this involves a shift from the assessment of the loss of earnings to an assessment of the deprecation in the person's market value. However, the foundation is the theoretical fulfillment of "an eye for an eye" – not an eye in the literal sense, but rather the monetary value of the eye, but in any even monetary payment that represents the eye and not the loss of earnings, in order to emphasize the punitive dimension of a measure for a measure. [And since the Oral Law established that the payment for the nezek is assessed as if he were a slave sold in the market place, the same applies also in situations where there is no "eye for an eye," e.g., where an animal caused an injury to a person.] After the offender pays his victim the value of the injured organ, the liability for lost earnings shrinks and turns into liability for the recovery period and for work as if he were a watchman of cucumber beds. Accordingly, the reason that the Torah chose not to suffice with shevet as a comprehensive solution for the blow to the victim's earning power is the desire to give expression to the idea of "an eye for an eye," even though in practice this leads to a significant leniency for the offender from an economic perspective (and I agree that there is a certain difficulty here).

 

            Therefore, according to the Rambam, the payment for nezek is a kenas, since it represents the law of "an eye for an eye," and the payment for shevet is a chiyyuv mamon, because it is payment for real economic damage. On the other hand, payment for nezek is a payment which by definition constitutes the basic compensation for the damage, and therefore it applies even in the case of an animal that causes damage to a person, whereas payment for shevet is a novel law that the Torah introduced in the case of a chovel (for it is possible to include also the temporary loss in livelihood in the payment for nezek), and therefore it applies only in the case of a chovel.

 

            It seems that it is possible for there to be situations in which an expanded law of shevet should apply, that is, that compensation should be made entirely in the framework of shevet. This is what the Even ha-Ezel suggests regarding the view of the Rambam, that when the offender admits to his liability for the nezek, and thus becomes exempt based on the rule that one who admits to a kenas is exempt, he becomes liable in the framework of shevet to compensate his victim for the loss of earnings for the remainder of his life, because he was not paid the value of his hand or leg. It would seem to me that this should be the law today, when it is impossible to assess depreciation in light of the disappearance of a slave market (and according to the Shulchan Arukh's ruling in sec. 1 the courts today are only authorized to rule on shevet, but not on nezek).

 

            However, even when the law of depreciation as a slave sold in the market applies, even though its use instead of shevet is based on a punitive idea, and according to the Rambam it is defined as a kenas, we should not make light of the economic significance of this payment for the injured party. In the end, the victim lost his source of income, or at the very least it was impaired, and the main payment that is meant to cover this loss to some degree is the payment for nezek.

 

In shiur no. 16, we had difficulty understanding the Maharshal's position (Yam Shel Shelomo, no.11), that the assessment of nezek is made as if the victim were a slave who has no special skills and is sold in the market for ordinary physical work alone, and without taking into account the victim's profession. The Maharshal, so it seems, understood that since we are dealing with a kofer for the victim's principal organs, it is fixed in accordance with the organ itself, and not in accordance with the personal professional skills that were impaired. But we raised the difficulty that this law applies also in the case of an animal that caused an injury to a person, and even in the case of a chovel, the law of depreciation is the main economic instrument for compensating the victim for his damage. Therefore, we were very inclined to the position of the Rosh in sec. 4, that the assessment is made in relation to the victim's profession and takes into account the depreciation in his value with respect to that profession.

 

            The Rosh, however, adds that as opposed to liability for shevet, which is determined in accordance with the sum that injured party would apparently have actually earned, for better or for worse, with respect to nezek, we consider the victim's special professional talents only when that works to his favor, but not to his detriment. The amputation of the leg of a prominent lecturer does not obligate less compensation than the amputation of the leg of a street cleaner. We suggested with respect to the position of the Rosh that there are two laws regarding the assessment of nezek: One law whose conceptual framework is something like "great loss of livelihood," as formulated by Abaye on p. 86a, i.e., a sum that represents the victim's earning power over the course of his life; and a second law that reflects the depreciation in value of the victim's body, and this depreciation is measured according to the economic value of the basic physical abilities of the average worker. For this reason, personal professional abilities can raise the assessment of the damage, but they cannot lower it.

 

            As a rule, we see that the Torah's choosing to assess liability for depreciation as if the victim were a slave sold in the market, and not to calculate the loss in the victim's earning power over the course of his lifetime, also changes the economic nature of the liability. In general it limits it, but this does not exhaust the change. Liability for shevet forces us to estimate the professional abilities that the victim might have reached in the future. Thus, for example, we would have to decide whether to fix a different sum for a person born in an upper class neighborhood than for a person born to a single mother in a poverty and crime-stricken area. The mechanism used to assess nezek frees us of such questions – we assess the victim as if he were a slave sold on the market, and to this we add compensation for the professional talents that he has already developed. Therefore, payment for nezek is sometimes greater than that for great loss of livelihood.

 

For example, the Maharshal proposed that an unemployed person is not eligible for compensation for shevet, but presumably he is entitled for compensation for nezek.

 

            To conclude this section, I wish to mention that according to the plain understanding of the words of the Rambam (Hilkhot Chovel u-Mazik 5:7), in his explanation of the fact that the payment made for shevet is a chiyyuv mamon, it would seem that the obligation is to pay for future damage that has not yet occurred – the salary that the victim would have earned in the future had he not been injured: "For if he does not reimburse the injured person for them, he will have caused him to forfeit the money he spent on medical treatment and the money he lost through unemployment." His words can, however, be understood differently, namely, that like the ordinary laws of damage, the liability here is for the damage that already occurred – an impairment of the victim's earning power. Over the course of our study, I collected eight practical halakhic ramifications. So as not to overburden the reader, I have listed them in a footnote.[6]

 

 

III. Healing

 

 

            Ripuy and shevet are two payments that are considered monetary payments even according to the Rambam, since they compensate the injured party for economic damage. Nevertheless, we are dealing with liabilities that the Torah introduced in the framework of injury, and only in the case of a person who intentionally causes an injury to another person. It would appear that we are dealing with gerama (indirect damage), and therefore had it not been for the Scriptural decree, the offender would be exempt from liability. However, similar to what we saw in the framework of liability for shevet, regarding ripuy as well the picture is more complicated. First of all, when an article requires fixing, and that fixing involves a monetary cost, it stands to reason that this impacts upon the market value of the article, and therefore it can be included in the framework of the compensation for nezek. Indeed the disciple of Rabbeinu Tam (33a, s.v. aval) and the Maharshal (no. 22) propose that there is liability for such depreciation even in the case of a person who injured an animal or an animal that injured a person. And furthermore, the Shevut Ya'akov (III, no. 178) and the Netivot (340, no. 3) propose that liability for ripuy can also be imposed in the framework of the liability for nezek, as this is part of the offender's obligation, to bear the cost of the repair. This can even be seen as serving his interest, for without the repair, the scope of the damage will be much greater (we saw that the Chazon Ish, Bava Kama 12, 1-2, disagrees with this). Accordingly, the foundation for the liability for ripuy already exists in the framework of the general laws of damage.

 

            The Netivot adds that "the healing mentioned in the Torah," namely, the liability that was introduced in the section dealing with a chovel, is only ripuy that is not connected to nezek, e.g., ripuy in a case where there is no nezek, or ripuy that only hastens the repair of the damage. But we suggested that even if we adopt his position regarding situations in which the laws of injury do not apply, there is room to say that when the laws of injury do apply, the law of ripuy includes all the sums that are connected to repair of the damage, and the liability for nezek is reduced accordingly to the final damage alone, similar to what we saw regarding nezek and shevet.

 

The practical ramification is that even according to the Rambam all the payments for healing are considered a chiyyuv mamon. It seems to me that this is what is implied in the sources. As for the nature of the liability for ripuy, the wording of the Rambam in his explanation as to why this is considered a monetary payment, it would seem that we are dealing with a case of gerama, in that the offender caused his victim to pay money to the doctor: "For if he does not reimburse the injured person for them, he will have caused him to forfeit the money he spent on medical treatment." It would seem, however, that even the Rambam would agree that it is not the expenditure of money that obligates compensation, but rather the injury to the body. The unique novelty of "he shall cause him to be thoroughly healed" is that the liability to which the injury gives rise is to see to the healing of the wound, and not compensation for the nezek. All that the Rambam wishes to say is that the fact that without compensation the victim would suffer a monetary loss teaches us that we are dealing with a liability that falls into the category of a chiyyuv mamon. [There is a certain similarity between this understanding and the understanding we suggested regarding shevet, that shifts the injury that imposes liability from the loss of salary to the impairment of the victim's work potential, and some of the practical ramifications that we saw there are relevant to ripuy as well.]

 

            As for the precise nature of the liability, it must be determined whether we are dealing with a liability to pay the cost of the medical treatment, or with an obligation to heal which in practice is translated into payment of the doctor's fees (as understood by the Kovetz Shiurim, Ketubot 218). The second understanding can be inferred from the wording of the mishna, and even from the wording of the Scriptural verse: "Only he shall pay for the loss of his time, and shall cause him to be thoroughly healed." In the shiur on healing we saw several practical ramifications of this distinction.

 

IV. Pain and humiliation

 

            Since as usual we have already gone on at excessive length, we must now be brief regarding a matter about which there is much to say. The payments made for tza’ar (pain) and boshet (humiliation) are the two payments that are made for non-monetary damage. Nevertheless, according to most Rishonim (this is explicit in the Ra'avad and the Ramban) these obligations fall into the category of chiyyuv mamon. Even though we are dealing with a novel law that is unique to the case of a chovel, the Torah is ready to recognize such damage in those situations where the novel law applies. We are dealing with compensation awarded to the victim for the injury to his well-being. Because of my pain, I enjoy my life less, just as my life is less enjoyable if I suffer a financial loss, and this justifies compensation. The difference lies in the fact that with respect to monetary damage the monetary compensation is closer to the original. The payments made for tza’ar and boshet try to compensate with money for non-monetary damage, and therefore there is less correspondence. Perhaps this is the reason that according to the Rambam we are dealing with a kenas. Over the course of the shiur on tza'ar (no. 14), we tried to analyze the economic instruments that Chazal used to translate the injury into a monetary sum, and we noted the built-in deficiencies in those attempts.

 

            In order to properly review the issue of boshet, we must join to shiur no. 18 the relevant sections in shiur no. 19 (a blind person), 22 (the humiliation of slaves) and 25 (verbal humiliation). Here I wish to relate to one point. The natural inclination is to categorize boshet alongside tza'ar, as two non-monetary forms of damage. It is possible, however, that boshet should be categorized alongside nezek, as a payment that gives expression to compensation for an injury that has certain consequences. This is true if we understand that the liability for boshet is not for the fact that because I am a dignified person, my humiliation is a painful injury, but rather for the fact that the humiliation lowers me – if only temporarily – from the level of dignity that I had previously enjoyed. In shiur no. 27 we suggested with respect to Rabbi Akiva according to the first understanding, but there is also support for the second understanding. The passage on p. 86b is in doubt about one who humiliated another person while he was sleeping, and the victim died in his sleep, whether the offender is liable, even though the victim suffered no humiliation.

 

One of the arguments in favor of imposing liability is that the liability is not for his insult and feeling of humiliation (kisufa), but rather for his disgrace (ziluta) and the lowering of his standing. This disgrace is an objective injury that diminishes his well-being, even without his experiencing any suffering (in the aforementioned shiur we also suggested other explanations of the Gemara). So too, the Gemara on p. 92a, according to Rashi, says that the payment made for boshet does not compensate the victim for the pain experienced because "he worries about his humiliation," but only for the humiliation itself – the injury and not the suffering that it involves. As stated, in a surprising manner this connects the liability for boshet to the liability for nezek.

 

***

 

            With this we conclude our study this year of chapter Ha-Chovel and tractate Bava Kama. On a personal note, I would like to add that writing up these shiurim this year, at night after a full day of work, involved great effort, but also brought me great satisfaction. First, because of the Torah study involved and because of the integration of Torah and Derekh Eretz. Second, because of the sense of mastering fascinating talmudic passages and an entire issue (especially in chapter Ha-Chovel). And third, as a lawyer, I took special satisfaction dealing from a Torah perspective with issues that occupy tort specialists in practice and in academia. I hope that my perspective as a lawyer contributed to the quality of the shiurim and did not detract from them.

 

            Alongside the satisfaction connected to the writing of these shiurim, I had hoped to hear from my readers answers to questions that I had raised or critical comments regarding points that I had raised. Unfortunately I did not receive any reactions over the course of the year, and I can only hope that there are people who actually read the shiurim. Anybody who wishes to contact me is invited to do so at [email protected].

 

I wish to thank the Yeshiva for granting me the privilege of writing these shiurim over the course of the past year; Debra Berkowitz for her help behind the scenes; the English translator, David Strauss, and editor, Yonatan Shai Freedman; my revered teacher Rav Ezra Bick, with whom I discussed many of the issues and from whose audio shiurim I learned much; Rav Uziya Kronman, the dedicated Hebrew editor of these shiurim, who faithfully edited them with a critical eye, and whose comments greatly contributed to a clarification of the issues.

 

(Translated by David Strauss)


[1] I especially recommend that you review the shiurim dealing with the various categories of payments, as well as the shiur dealing with one who causes an injury to a non-Jewish slave, which offers a comprehensive review of certain fundamental principles in the law of injury.

[2] This is the position of Rashi in Ketubot 33a, s.v. ela (in Rambam, Hilkhot Chovel u-Mazik 4:9 it even says that it is with respect to the payment made for shevet (loss of livelihood) that the Torah specifically stated that one who injures another person should pay compensation: "He shall pay for the loss of his time"). The Or Same'ach (Hilkhot Na'ara Betula 1:11) has a different understanding based on the words of the Hagahot Oshri in the name of the Or Zaru'a, but what he says is difficult, and so too his reliance on the Or Zaru'a is not convincing (and so writes Afikei Yam, II, 39).

[3] In the shiur we noted alternative understandings of the Rambam that emerge from the words of the Acharonim.

[4] According to the simple understanding – like a non-Jewish slave, who is indeed sold like a monetary object with respect to which the purchaser acquires full ownership. This is the position of the Rosh, sec. 1. In shiur 13, we inclined to the understanding that Rashi at the beginning of the chapter does not disagree.

[5] Apart from where there is liability for loss of livelihood but no depreciation, in which case there is compensation for damage for which there would not have been compensation in any situation other than that of one who intentionally causes an injury to another person.

[6] Ramifications of the understanding that the payment made for shevet is payment for an injury to the body with respect to fitness for work:

1) This is a possible understanding of the opinion of the Rosh in sec. 3 regarding the law of one who locks a person in a room. The Gemara says that one who locks another perrson in a room is liable to compensate the victim for his shevet. The Rosh conditions this liability on the offender's bringing the victim into the room and locking him up there. But if the victim had already been in the room and the offender merely locked the door, this is gerama and the offender is exempt. This is surprising, because it would seem that loss of livelihood in general, and locking a person in a room in particular, is always gerama, because the offender indirectly causes that the victim is unable to work. And it would seem that the Torah teaches that in such a case there is liability despite the fact that we are dealing with gerama. It is possible that the Rosh understood that liability for loss of livelihood is not liability for gerama, but rather liability for an injury to a certain dimension of the victim's body – his fitness for work, and the value of this injury is assessed in accordance with the number of days that he is out of work. Liability can only be imposed for direct damage, and not for gerama.

2) Several Rishonim imply that liability for shevet includes also compensation for work that the victim would not have performed even had he not been injured. The Ba'al ha-Ma'or and the Rama propose that liability for shevet relates to work that the victim would have performed at the same time as his previous work, e.g., to guard the cucumber field with his eyes at the same that he works in the field.

The Rambam (2:4) writes that one whose head was shaved by another person is entitled to compensation for shevet, "because previously he was fit to dance and shake the locks of his hairs, and he is thus prevented from performing this type of work." The Rambam, in contrast to Rashi on p. 86a, implies that we are not dealing with someone for whom this is his profession, but rather this is a potential occupation for all people, which was taken away from him when his head was shaved, even if in practice he is an office clerk who continues with his ordinary work, and even though this profession involving such dancing is far from being prevalent. These opinions are novel and difficult to understand, but in any event they imply that the liability for shevet is payment for the impairment of the victim's ability to work and not for his financial loss.

3) The Rishonim disagree whether the liability for shevet is for the full salary that the injured party lost, or for the salary of an idle worker. If a person earns $100 a day, but for $90 he would agree to stay home and forfeit a day's work, then in the framework of compensation for shevet he is only entitled to $90, for the bottom line is that he did not work. The Rosh (sec. 6, based on the Rif) implies that he is paid like an idle worker. This is in contrast to Rashi on p. 86a and the Ittur (Me'a She'arim 8, 57a in Alfasi). One of the Ittur's arguments is that when we are dealing with compensation for damage caused outright by another person, there is no room to consider the fact that he is an idle worker – by Torah law the offender must pay the full value of the damage. It is possible that the Rosh was of the opinion that the liability for shevet is for the loss of earnings, and this must be calculated in accordance with the overall good that reaches the person, and the gain of a forced rest must be deducted; while the Ittur sees this as a regular case of damage that is based on damage to the body, and there is no room to deduct for external benefits.

It is clear, however, that we cannot adopt this explanation of the Rosh alongside the explanation that we mentioned in par. 1 above, for if so there would be a contradiction. The Rambam implies the following distinction: When there is nezek, then the liability for shevet is also for the impairment to the victim's body, and the offender pays the full salary, whereas when there is no nezek, there is liability for the loss in earnings and then he pays as an idle worker (2:11).

4) Regarding the case of the serial injurer on p. 85b (one who removes another person's hand, foot, eye and finally makes him deaf), the Rosh in sec. 5 writes that it is obvious that he must compensate for the relative loss of work potential at each moment. But Rashi and the Tosafot understood otherwise, that since in the end he pays him his full value, there is no room to obligate him to pay for the shevet. It seems that this is based on the understanding that the liability for shevet is for the injury to the body, so that when payment is later made for the full value of the victim's body, there is no longer any room to pay for partial injuries.

5) The Gemara on p. 91a says that when an assessment is made for shevet and ripuy (healing), and the victim recovers more quickly than expected, this does not lighten the offender's liability, "as the unexpected recovery was an act of mercy especially bestowed upon him from Heaven." In shiur no. 26, we questioned this explanation, for it would seem that the damage has not yet occurred, and so for what is the compensation. If, however, we understand that the payment is for injury to the victim's body, the injury was already caused, and the assessment comes only to quantify it, and since the action of the court was valid, we say that the quantification was correct, only that the victim succeeded in accomplishing more than had been expected with what remained of his fitness to work. This success falls into the category of mercy from Heaven and does not lighten the liability of the person who caused the injury.

6) When a person causes an injury to a non-Jewish slave belonging to another person, it stands to reason that the slave's master is entitled to the compensation for his loss of livelihood, and not because of the rule that whatever is acquired by a slave belongs to his master, but rather because he is the party who suffered the damage, as it was work potential that belonged to him that was impaired. On the other hand, in the case of a person whose shtar shichrur (bill of manumission) was held up (i.e., a non-Jewish slave who monetarily already belongs to himself, but the name of his master still falls upon him with respect to his personal status, and he is still deemed a slave until he receives his bill of manumission), it stands to reason that the slave should be entitled to collect the compensation for shevet because his work potential belongs to him, and the rule that whatever is acquired by a slave belongs to his master no longer applies.

There is, however, a novel position in the Gemara in Gittin 42b, according to which it is the master who is entitled to the payment for nezek. We explained that the payment for compensation, owing to its uniques nature as a kofer for the principle organs, does not necessarily go to the party who is monetarily entitled to the payment, but to the injured party, and in the case of the slave, to him by whose name he is called. But regarding compensation for shevet, it is more reasonable to say that it is more connected to the monetary dimension. To our surprise, however, we saw views that disagree. The Tosafot ha-Rosh (Gittin 42b) says that the master is entitled to the payment for shevet of the slave who lacks his bill of manumission, similar to the payment for depreciation and the penalty of thirty shekels: "Since the penalty goes to his master, the payment for depreciation also goes to his master, for what is the difference between where he kills him entirely and where he kills him partially." On the other hand, the Netivot (363, no. 2) maintains that even with respect to a full-fledged slave, the slave is the initial beneficiary of the payment for shevet, and the master acquires it only because of the rule that whatever is acquired by a slave belongs to his master, even though it is the master who owns the slave's handiwork. It stands to reason that the Rosh and the Netivot, each in his own way, maintain that the liability for shevet is for the injury to the victim's body, like nezek, and therefore there is room to say that we ignore the monetary ownership, and that the slave himself, as the injured party, is the initial recipient of the compensation (Netivot); or that the master is entitled to the payment even when he no longer has monetary rights to him, because the slave is still called by his name (Rosh).

7) In the Gemara on p. 86, Abaye and Rava disagree about one who amputates the hand of a Jewish slave belonging to another person, when with respect to compensation for shevet – according to Abaye, the master is entitled to the compensation, because the work belongs to him, whereas according to Rava, according to our reading, it is the slave who is entitled to the payment, only that it is to be used for the purchase of land, and the master is entitled to its fruit for as long as the slave is by him. The Tosafot (s.v. Rava) emend the reading, so that it is the master who is entitled to the payment for shevet, as he owns the handiwork of the slave.

The Rif, however, has our reading, that it is the slave who is entitled to the payment for the shevet and the master is entitled only to the fruit. This is strange, and it can only be understood if we assume that the payment for shevet relates to an impairment of the slave's body with respect to his work potential, and that a Jewish slave, who owns himself, also owns his work potential, and therefore he is entitled to the payment for the shevet, only that he must pay his master for the fruit because of the lien that the master has on his work potential while he is his slave. In a certain sense, this position of the Rif continues the line of thought of the Netivot in the previous paragraph.

8) I heard from Rav Ezra Bick in the name of R. Sh. Ruzovski, z"l, who cites the Ritva in Kiddushin 16b, s.v. bore'ach) that a Jewish slave who ran away from his master is not liable for shevet ("for that fact that he ran away and was idle is merely gerama, like one who causes another person's purse or field to be idle, who is exempt"), and explains his position based on the understanding that the liability for shevet is not liability for the loss of his salary, but for the loss in his work potential, and a Jewish slave who chooses not to work does not impair his own work potential (according to this, a slave who locks himself in his room and throws away the key would be liable for shevet). It seems, however, that there is no proof from here. As I noted over the course of this shiur, there is room to argue that a self-inflicted injury is not considered an injury with respect to all matters connected to Choshen Mishpat, and therefore a slave who injures himself is liable to his master only based on the law of damage, and not injury, and thus there is no foundation for liability for shevet, which is unique to chovel.