An Eye for An Eye ֠Payment for the injury

  • Rav Shmuel Shimoni

 

 

            The previous shiurim focused on damage caused by a person's property to another person or his property (nizkei mamon). Today we will begin to deal with the laws governing a person who injures another person (chovel). The Torah, the Gemara[1] and the Rambam[2] all discuss this matter as a separate issue, apart from the general laws of damage, owing to the unique nature of injury and the laws that follow from it.  Moreover, regarding the ordinary laws of damage, the Acharonim toiled to uncover which if any prohibition underlies them, in addition to the obligation to pay for the damage. In contrast, regarding a person who injures another person all agree that there is a clear Torah prohibition, based on a surprising source: "Forty stripes he may give him, and not exceed" (Devarim 25:3).

 

            The mishna that opens our chapter spells out the five types of payments that a person who injures another person must make depending on the circumstances: nezek (injury), tza’ar (pain), ripuy (healing, i.e., medical costs), shevet (loss of livelihood), and boshet (humiliation). Among the various types of payments, tza’ar and boshet are types of damage, the very recognition of which is unique to the case of a person who injures another person. Shevet and ripuy are essentially monetary damage; the relationship between them and the ordinary laws of damage requires examination, and we shall expand upon the matter in the near future. But these two payments, together with the payments for tza’ar and boshet, are collectively known as the "four payments," which are only imposed when a person injures another person intentionally or close to intentionally (Bava Kama 26b-27a).

 

Payment for the injury itself, on the other hand, seems to be a payment of the type familiar to us from the general laws of damage – payment for the depreciation in value of the damaged item. We shall focus today on its unique parameters in the case of a person who causes injury to another person and the degree to which it corresponds to the general law of damage. I wish to preface my remarks by saying that my working assumption, as explained in detail in previous shiurim, is that the ordinary payment of damage is not a punishment imposed upon the person who caused the damage, but rather compensation paid for the damage that was caused.

 

            As we all know, the laws governing payment for injury are recorded in the Torah as follows:

 

And if a man maims a man, as he has done, so shall it be done to him; breach for a breach, eye for an eye, tooth for a tooth: as he has maimed a man, so shall it be done to him. (Vayikra 24:19-20)

 

            Many see this passage, alongside the halakha that "eye for an eye" means monetary compensation, as one of the most striking examples of the disparity between the plain sense of Scripture and the Oral Law. I personally am not convinced that it is impossible to understand from the plain sense of Scripture that what is stated here is not correct in its literal sense,[3] but rather we are dealing here with a unique illustration of what would have been fitting to do to the person who caused the injury, as will be explained below. In any case, we must understand the relationship between the literal meaning of the passage and the halakha that "an eye for an eye" means monetary compensation.

 

            It should first be noted that were the law in accordance with the literal sense of the verses, this would mean that the price paid by the person who inflicted the injury is the price of a punishment. We are dealing with a very harsh physical punishment, which does not compensate the victim in any way for the injury that he suffered. It is entirely focused on punishing the person who caused the injury. I will later suggest a possible understanding, according to which the victim would have received compensation in a different way, but in any event, the category referred to in the mishna as "injury" would have functioned merely as a punishment.

 

            Here enters the Oral Law and says that "an eye for an eye" means monetary compensation, and our passage offers several different suggestions for a possible source.[4] These suggestions can be divided into three groups. One group consists of arguments based on the impossibility of understanding "an eye for an eye" in a literal sense, and the Gemara takes care to reject all of these arguments, one after the other, even though they were proposed by some of the most prominent Tannaim.[5] A second group consists of expositions that are not negative, but rather positive – proofs that the expression "an eye for an eye" means monetary compensation. The third group constitutes a category of its own.

 

 

Ransom for the principal limbs

 

            The third group consists of a single argument, which does not fundamentally reject "an eye for an eye" in its literal sense, and which in itself does not require a different understanding of the verse. Rather, it accepts that at a certain level the basic law is that the punishment to be administered is the removal of the limb.

 

Note that it is stated: "Moreover you shall take no ransom for the life of a murderer, who is guilty of death," implying that it is only for the life of a murderer that you may not take "ransom," whereas you may take "ransom" [even] for the principal limbs that cannot be restored. (Bava Kama 83b)

 

            What this means is that the fitting punishment for one who caused an injury to another person's limb is removal of his corresponding limb, only that as opposed to the punishment of a murderer, for this punishment there is a ransom paid in lieu of physical punishment. This proposal attaches great significance to the severity of the act of the person who caused the injury and to the punishment that he deserves according to the plain sense of Scripture.

 

            The Gemara notes that this derivation needs support from a gezeira shava that teaches that "an eye for an eye" means monetary compensation, because based on this derivation alone, I might have thought that in practice there are two possible alternatives: removal of the limb or payment of the ransom.

 

As an aside (a point to which I will return below), I wish to add that according to the plain sense of the standard reading of the Gemara, the initial understanding is that we are dealing with a ransom in its literal sense – the person who caused the injury may choose to save his eye by offering monetary compensation.[6] A marginal note in the Gemara records the reading of the Maharshal, according to which the initial understanding of the Gemara says just the opposite: the person who suffered the injury can choose whether the person who caused the injury should receive a corporal punishment or whether he should receive monetary compensation for the injury he suffered. Tosafot Rabbeinu Peretz explains the Gemara this way even according to our reading.[7]

 

There is something novel here that a private individual, albeit the injured person, is given the right to decide about the punishment, for according to the simple understanding, punishment is not based on personal revenge, but rather on the Torah's desire that the transgressor be punished. This matter raises questions that we cannot expand upon in this forum.

 

In any event, the Gemara's conclusion is clear, that in practice "an eye for an eye" means only monetary compensation. Nevertheless, according to this derivation, this money is sort of a ransom for the punishment that the offender should have received – a corporal punishment.

 

            This idea is raised a notch by Rabbi Eliezer at the end of our passage, where he asserts: "'An eye for an eye' – literally." This would seem to mean that indeed the eye of the person who caused the injury is removed. The Gemara, however, concludes (according to Rav Ashi[8]) that certainly even Rabbi Eliezer agrees in practice that the court does not actually remove the eye of the person who caused the injury, only that he maintains that we are dealing here with a ransom at the highest level. The fundamental law is that the eye of the person who caused the injury should be removed, but instead we assess the value of his eye, and he pays its value in money: "That the evaluation is made not of [the eye of] the injured person, but of [the eye of] the person who caused the injury."

 

            It is interesting to note that with respect to the question whether the evaluation is made of the injured person or of the person who caused the injury, there is a parallel passage earlier in the tractate on p. 40a, which deals with the law of the ransom that is paid by the owner of a mu'ad ox that killed a person. The Gemara there discusses a Tannaitic dispute as to whether the evaluation is made of the party who caused the injury (the owner of the ox) or of the injured party (the person who was killed). The Gemara proposes that the Tannaim disagree about whether the ransom is a monetary obligation (if the ransom is monetary compensation, then the evaluation should be made of the person who was killed) or whether the ransom is atonement (if the ransom is atonement for the party who caused the damage and a substitute for his execution, then the evaluation should be made of the party who caused the injury and that sum should be paid in exchange for his life[9]). The Gemara, however, rejects this argument, saying that all agree that the ransom is atonement, but nevertheless that there is room to say that in actual practice the evaluation is made of the injured party.

 

            Regarding our matter as well, it stands to reason that even though Rabbi Eliezer's position emphasizes the principle of a ransom, there is room to maintain it even according to the accepted position that the evaluation is made of the injured party.

 

Ransom for the Principle Limbs according to the Rambam

 

            The Rambam (Hilkhot Chovel u-Mazik 1:3)[10] cites the derivation regarding the ransom paid for the principle limbs:

 

The Torah's statement: "As he has maimed a man, so shall it be done 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: "Moreover you shall take no ransom for the life of a 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.

 

            The novelty here is twofold. First of all, on a theoretical level the severity of the actions of the person who caused the injury justifies that the same injury be caused to him. Second, even the law in practice – the obligation to make 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 restitution for the injury actualizes the need to punish the person who caused the injury. Here there is a certain tension between the punishment imposed on the person who caused the injury and the atonement of the person who caused the injury (which fundamentally is for his benefit), for a ransom (kofer) – at least according to the view that a ransom is atonement – is as the word itself implies: an obligation of atonement (kapara). In any event, this is a monetary obligation that is focused not on compensating the injured party for the damage that he suffered, but rather on punishing the person who caused the injury.

 

            A sharp halakhic expression of this is found in the Rambam's position. Payments demanded by Halakha are generally categorized as either a chiyuv mamon (monetary obligation) or kenas (penalty). A debtor's obligation to repay his debt is a classic example of a chiyuv mamon, whereas the obligation falling upon a thief to pay double or four or fives times the value of what he stole is a classic example of a kenas. As a rule, payments made for damage, though they are defined as "a debt written in the Torah," i.e., an obligation that the Torah casts upon a person without his having willingly accepted it upon himself and without having received any money from the other person, fall into the category of mamon rather than kenas. As the Rambam writes in Hilkhot Nizkei Mamon (2:7): "Whenever a person must pay full damages, the payment is considered to be a mamon obligation that he is liable to pay, as if he had borrowed [money] from his colleague. When, by contrast, a person must pay half the damages, the monetary obligation is considered a kenas…."[11]

 

We will not clarify here the precise difference between a chiyuv mamon and a kenas; we will content ourselves with the fundamental definition proposed by R. Elchanan Wasserman in his Kovetz Shiurim, II, no. 13: "In the case of mamon, he is obligated to pay his debt to the party who suffered the damage. Once his debt to the party who suffered the damage is removed he is exempt, because the defendant's obligation is based entirely on the plaintiff's rights. In the case of a kenas on the other hand it is just the opposite. The plaintiff's right is because of the defendant's obligation, as he must be punished, as it is written in the verse: 'And they shall punish him with a hundred pieces of silver," just like with the punishments of flogging and judicial execution, only that in the case of a kenas his punishment is that the court will force him to pay, but the essence of his obligation is the obligation to be punished."

 

            One of the most important distinctions between a kenas and a chiyuv mamon is the law that one who admits to a kenas is exempt from paying it, because his admission negates the punitive nature of the penalty.

 

            Here enters the Rambam[12] who distinguishes with respect to this point between the five categories of payments imposed on a person who caused an injury to another person. In his view, shevet and ripuy are chiyuvei mamon, as they are recognized financial losses. Even though we would not have imposed them had it not been for the verse that explicitly mentions them, as we are dealing with indirect damage (gerama), when the Torah imposes them they are chiyuvei mamon. Tza’ar and boshet, on the other hand, are categories of damage, the very recognition of which is unique to the law of intentional injury, and these are special obligations that the Torah imposes as a kenas. We will expand upon each of these obligations in the future.

 

The most important novelty for our purposes today is that, according to the Rambam, payment for the injury is considered a kenas, rather than a chiyuv mamon, and consequently one who admits to having caused an injury only pays for shevet and ripuy.[13] The Ra'avad in his strictures on the Rambam and the Ramban in Shevu'ot 46b disagree with the Rambam, arguing that all five categories of payments are chiyuvei mamon and not a kenas. As stated, we shall focus today on this disagreement regarding injury.

 

            The Rambam's view regarding injury seems to be a continuation of his aforementioned position that not only would there have been room for corporal punishment, but even the money that is paid expresses the fact that "he deserves to lose a limb" – even the monetary payment is a kenas imposed on the person who caused the injury.  

 

            Here, however, there is room to raise a fundamental question: granted that regarding the law governing a person who causes an injury there is a special stringency that justifies the imposition of a punishment – corporal or monetary – on the party who caused the injury; but in what way is an injury inflicted upon the body of his victim inferior to other damage inflicted upon his property, which obligates payment of money, as a monetary obligation, for the depreciation in value of the damaged property? Surely we saw earlier what the Rambam says in Hilkhot Nizkei Mamon: "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 his colleague!" In other words, it is easy to understand that there is room for an additional story in the severity of the laws governing a person who caused an injury, but it is more difficult to understand the absence of the foundation for the more basic floor – ordinary compensation for the injury that was caused. Is the removal of a person's leg – if only from a certain perspective – inferior to the removal of the leg of a table?

 

            Many of the Rishonim who address this issue explain that there are various reasons not to see payment for injury as financial restitution of the usual type for depreciation in value: a person's body is not an economic asset like a table that can be traded; or because a person does not own his body in the way that he owns the table; or because a monetary payment cannot substitute for a leg that was removed, in the same way that money can serve as a substitute for the leg of a table.[14]

 

            In my opinion, however, even though each of these proposals raises weighty questions, they do not provide a satisfactory explanation. This is because even the Rambam agrees that when an animal injures a person and its owner is obligated to make restitution, this restitution is regarded as a chiyuv mamon, and not a kenas. This proves that there is nothing to prevent us from seeing a person's body as a financial asset, owned by him, that suffered damage. Similarly there is nothing to prevent us from saying that monetary compensation can serve as a substitute for the item that was damaged, if only at the level that suffices in order to cast a chiyuv mamon in the case of damage.

 

            Thus we are forced to say that nothing is missing in an injury, as a result of which a chiyuv mamon cannot be created, but rather that something is added. The monetary loss exists and it can obligate compensation through the ordinary channels, only that the violent dimension on the interpersonal level with its unique severity cancels the regular monetary-financial perspective, and shifts the law to the realm of punishment. The ordinary law of damage could have been applied here, only that the special law of injury uproots and replaces it.

 

            Various practical ramifications follow from this understanding of the Rambam. I will mention just two of them:

 

1. The Minchat Chinukh (commandment 49, no. 25) suggests according to the viewpoint of the Rambam: "It is clear to me that if a person caused an injury to a non-Jewish slave belonging to another person, he is liable to pay the [slave's] owner the five payments… Here the injury is not a kenas from which a person is exempt when he admits his guilt, because a person's slave is like his ox and other property… If so, he is like a person who caused damage to another person's ox, where the damage is a chiyuv mamon, regarding which even a person who admits his guilt is liable."

 

The Minchat Chinukh seems to understand, as did the aforementioned Acharonim, that the reason that payment for injury is not considered a monetary obligation is that no damage was caused to a financial asset owned by the plaintiff. Therefore, in the case of a slave, whose body is the property of his owner – the plaintiff, there is no reason not to sue for payment for the injury as a chiyuv mamon, for the removal of the slave's leg is the same as the removal of the leg of a table?

 

According to what we said, however, there is no room for such a position. Regarding all people, even free men, removal of a leg is the same as the removal of the leg of a table, only that the violent and prohibited dimension of injury removes the case from the category of chiyuvei mamon and shifts it to that of a kenas. This dimension is found even in the case of one who causes an injury to a slave, and as such there should be no difference between the cases.[15]

 

2. As was explained above, p. 26b, the law governing a person who caused damage – "A person is always mu'ad, whether he caused damage unwittingly or intentionally" – applies also to payment for injury, but not to the other four categories of payment. One who unwittingly causes an injury to another person is only liable to pay for the injury. According to what we have said, there is room to say, and I say this with hesitation as there is no basis for what I am to say in the words of the Rambam, that the liability for an unwitting injury is a chiyuv mamon, and one who admits his guilt would be obligated. This is because in the case of an unwitting injury there is no room for punishment, and there is certainly no conceptual foundation to impose "an eye for an eye" in its literal sense, and therefore we are left with the ordinary foundation of a chiyuv mamon that was not uprooted by the foundation of punishment.[16]

 

Why not invoke "an eye for an eye" in its literal sense?

 

            We have seen sources that emphasize the severity of the act of a person who caused the injury, and that the Torah's words, "an eye for an eye," reflect what theoretically would have been fitting to do to the person who caused the injury. The question therefore arises: Why does the Oral Law choose not to apply this theoretical law in actual practice?

 

            The simple answer seems to be that the Written Law reflects the attribute of Justice in all its purity, so that it would be fitting to do to the person who caused the injury, whereas the Oral Law introduces the attribute of Mercy, which prevents the actual administration of such a severe corporal punishment. Rav Mordechai Breuer, z"l, rejected this approach.[17] According to him, the rule is that we do not show mercy in judgment. So too, he argues, were we to apply "an eye for an eye" in its literal sense, surely it would be with all the limitations associated with capital punishment. What this means is that we are dealing with a person who intentionally gauges out another person's eye, in the presence of witnesses, and after having received a warning and having said: Knowing all this I act. Is punishing such a person with the removal of his eye a crueler punishment than stoning a Shabbat desecrator?

 

            Rav Breuer himself maintains that it is not mercy for the person who caused the injury that prevents application of "an eye for an eye" in its literal sense, but rather mercy for the person who suffered the injury. The injured party suffered, among other things, a severe financial loss, and corporal punishment applied to the person who caused his injury will not compensate him in any way. The Oral Law attaches importance to compensating the injured party, and therefore establishes that "an eye for an eye" means monetary compensation.[18] The Written Law wrote "an eyes for an eye" in order to teach us the severity of the action of the person who caused the injury over and beyond the monetary dimension and his obligation to atone for his action. But the Oral Law is focused on the welfare of the injured party (the matter should be examined whether this fits in with the payment falling into the category of a kenas according to the Rambam).

 

            Surprisingly, Rav Breuer – contrary to his usual method – does not rely on some other aspect in the Written law that leads to the practical result of the Oral Law. So too it is possible to raise various arguments against the assertion that the law of "an eye for an eye means money" is vital for the protection of the injured party:

 

1. As was already mentioned, the Gemara states that there was room to say that there are two practical alternatives: payment or removal of the limb. Some understand that according to this assumption it is the injured party who would decide between the two. Another exposition teaches us that there is no possibility of corporal punishment in the case of injury. If it is the injured party who would have chosen the punishment, the second exposition merely narrows the possibilities standing before the injured party, and does not benefit him in any way.[19]

 

2. Even if payment for injury is not explicit according to the plain sense of Scripture, payment for shevet is certainly explicit: "And he shall pay for the loss of his time" (Shemot 21:19). Payment for shevet constitutes compensation for the loss of the injured party's earning power as a result of the assault. According to the law as we know it, this payment relates exclusively to the period during which the person cannot work until he recovers. Even during this period he is only eligible for payment according to his new condition, and not according to his condition prior to the injury. Our mishna explains this as based on the fact that he was already awarded payment for his injury, "for there has already been paid to him the value of his hand or the value of his leg." However, were it the law that there is no payment for injury and that "an eye for an eye" is administered in its literal sense, it would stand to reason that the payment for shevet would have to be immeasurably greater than that with which we are familiar. Not only would there be no room to see the injured party as "a watchman of cucumber beds," but rather it would be necessary to evaluate the matter in accordance with his previous employment opportunities, based on all the working years that he has left until retirement. The drop in income owing to the loss of his hand would be included in the payment for shevet, for there is a partial loss of income. Surely it makes no sense that the law of payment for shevet should relate specifically to the recovery period and to absolute inability to work.[20] The relationship between the theoretical payment of shevet in its broad sense – compensation for the lifetime loss of income of a person (a pianist, for example) who lost a hand, and the payment for injury, which Abaye, later in the Gemara (p. 86a) calls "great loss of livelihood," is a complicated matter, to which we will return in the future.

 

It is also possible that expanded compensation for shevet would constitute a larger sum than payment for the injury, for which the injured party is evaluated as if he were a slave sold in the market. In any event, this understanding regarding payment for shevet suggests that even were "an eye for an eye" to be understood literally, it does not necessarily follow that the injured party would come out without any financial compensation for his injury.

 

            There might, therefore, be room to suggest an understanding slightly different from that of Rav Breuer. It is possible that there are indeed two aspects in the Written Law. One aspect expresses the punishment that the person who caused the injury deserves to receive – "an eye for an eye." A second aspect expresses the compensation that the injured party deserves to receive - "only he should pay him for the loss of his time," in the broad sense of loss of income.[21] The practical application of these two aspects would lead to a perversion of justice, because the person who caused the injury would pay both with his eye and with that which is considered a financial substitute for the injured party's eye. The Oral Law, therefore, joins these two aspects together and says that "an eye for an eye" means a chiyuv mamon, and according to the Rambam, a kenas. This law reflects the dimension of punishment, i.e., that it would have been fitting to remove his eye, but instead the person who caused the injury pays the value of the eye (and not the aggregate decline in earning power). This constitutes in practice compensation at one level or another for the monetary loss incurred as a result of the injury, and leaves the shrunken law of payment for shevet – limited to the period when he cannot work at all, and even then: "The injured person is considered as if he were a watchman of cucumber beds. For there has already been paid to him the value of his hand or the value of his leg."

 

Payment for injury - THE INJURED PERSON IS CONSIDERED AS IF HE WERE A SLAVE BEING SOLD IN THE MARKET PLACE

 

            We discussed the possibility that "an eye for an eye" according to its literal meaning refers to the punishment that the person who caused the injury deserves to receive. We also saw the position that states that even the payment for the injury is a substitution for this and that essentially it is a punishment. We expressed our reservations about the understanding that there is no foundation for the payment of damage in its ordinary economic sense, but we concluded that the severe nature of injury cancels the ordinary obligation and shifts it to the track of punishment and kenas.

 

Now, however, we must balance this and say that despite all of the above we must not make light of the financial importance of the payments imposed upon a person who caused an injury. In the end, the livelihood of the injured person was destroyed, or at the very least seriously damaged, and the payments are meant to cover that at least to some degree. In this context the main payment is that for nezek. I suggested above that the payment for shevet could have been compensation for the lifetime loss of earnings, and it is possible that this sum would be much greater than the payment for nezek that is assessed in connection with a slave sold in the market.[22]

 

However, the law is that even with respect to a person's body the valuation is similar to that found in the world of damages – the depreciation in value of the damaged property. This in itself does not necessarily follow from the unique character of the laws governing injury, for as I have already noted, even when an animal causes a person injury, in which case payment is made only for the damage and not for the other four things, the valuation is the familiar one, like a servant being sold in the market. The relationship between damage and shevet will keep us well-occupied in the near future in the framework of the passages dealing with shevet.

 

            Another possible alternative that is rejected by the mishna is mentioned in the words of the Rishonim.[23] This alternative is similar to the principle relating to the evaluation that we will see in the next shiur dealing with payment for tza’ar: "We calculate how much a man of equal standing would require to be paid to undergo such pain."[24] It would seem that the same could have been said regarding the payment for damage – to give the injured party the sum in exchange for which he would be willing to have his hand cut off. This sum is immeasurably greater than the depreciation in the value of a slave.[25]

 

The Rishonim were careful not to suggest such an extreme suggestion, which would have yielded unreasonable sums, but rather they present it in a more moderate and economical fashion – in exchange for what sum would he be willing to give up his slave's hand. Even this sum is much higher than the depreciation in the value of the slave. Here – the Rishonim explain – enters the principle that was discussed at length in our shiur on chapter Ha-Kones on the passage dealing with evaluating the damage in conjunction with another field – the tendency not to cause the party who caused the damage to suffer unduly. The source for this is the Gemara that we already saw in the past on p. 47a:

 

The valuation will be made for the calf as at the time when it formed a part of the cow. For if you do not adopt this rule, you will be found to be making the person who caused the damage suffer unduly. The same method is followed in the case of the cutting off the hand of a neighbor's slave; and the same method is followed in the case of damage done to a neighbor's field.

 

Rashi there explains:

 

In the case of one who cuts off the hand of a neighbor's slave – we do not evaluate the hand by itself, saying how much a person would want to receive to cut off the hand of such a slave. For surely one who sees his slave whole in body would only cut off his hand for a great sum of money. Rather we evaluate this slave, how much is he worth now and how much he was worth at first.[26]

 

So too writes the Rosh in our chapter, no. 1. He explains that the source for all the lenient rulings is the leniency that we find in connection with shein damage (payment made for what an animal ate), and about which we learned in the aforementioned shiur: "'And shall feed in another man's field' – to teach that the valuation should be made in conjunction with another field" (above 58b).

 

            It should be noted that the Brisker Rav, in his letters at the end of his book, argues that it was not by chance that the Gemara on p. 47a speaks specifically about one who cut off the hand of his neighbor's slave, and not about an ordinary case of injury, because cutting of the hand of a slave causes a loss in a monetary asset and thus belongs to the ordinary world of damage, whereas cutting off the hand of a freeman is governed by the unique law of injury. The Rishonim, however, do not say this; they offer different explanations as to why it speaks there specifically about the case of a slave (see Tosafot Rabbeinu Peretz, ad loc.), but the principle is a general one and it well reflects the law of our Mishna. As stated above, this valuation of the damage – based on the depreciation in value of the property – is valid both for a person who causes an injury and for an animal that causes an injury, despite the fact that there is no law of injury with respect to an animal, but only the ordinary law of paying for the damage as a chiyuv mamon.

 

            As for the slave in question, the simple – and in my opinion almost necessary - understanding is that we are dealing with a non-Jewish slave, in accordance with the meaning of the unspecified term, eved, throughout the Talmud. The logic here is that we are looking for a depreciation in value of a body, and the halakhic context in which a person's body itself is fully sold to another person is in the case of the sale of a non-Jewish slave. This stands in contrast to a Jewish slave, who is not fully owned by his owner. Indeed, a Jew cannot sell himself in the manner of a non-Jewish slave, but this price measures the value of the body of the injured person before and after the injury. The compensation is not for the loss that was caused him by the fact that he does not sell himself, but for the depreciation in value of the property that was injured, and therefore his depreciation in value as a non-Jewish slave is the proper measure. This is the explicit position of the Rosh (no. 1).

 

            Rashi on the Mishna explains the law of evaluating the injured person as if he were a slave sold in the market as follows: "For surely he caused him damage and a monetary loss, for had he been in need, he would have sold himself as a Jewish slave." Many have understood from this that the evaluation is made as if he were a Jewish slave. And furthermore, many have concluded from the words of Rashi that in contrast to the viewpoint of the Rambam who sees payment for injury as substituting for a punishment, Rashi maintains that we are dealing here with compensation for the monetary loss of potential earnings. However, the difficulties with this understanding are substantial. Already the Rosh noted that the sale of a Jewish slave is not a good measure, for the sale is only valid for six years. But even if we could overcome this difficulty, what would we say about a woman who suffered an injury, about whom there is no halakhic possibility of selling herself as a Jewish slave? And even with respect to men, surely the law of a Jewish slave only applies when the Jubilee year applies. Accordingly during the great majority of human history the theoretical possibility for the injured person to sell himself as a Jewish slave did not even exist.

 

            This forces us to adopt the Maharshal's understanding (Yam shel Shelomo, no.1) of Rashi, that even Rashi agrees that the evaluation is made with a non-Jewish slave. I will explain Rashi's position in my own words: Rashi does not say that the evaluation is made as if he were a Jewish slave, but rather that the legitimacy of seeing a person's body as a financial asset, the loss of which necessitates monetary compensation, is based on the fact that in certain situations a Jew can sell himself. Indeed, when he makes the sale, it is not absolute, and a woman cannot do this, as she can only hire herself out for work, and when the Jubilee year is not observed, the same is true about men as well, but nevertheless the very capability that a person has to sell himself as a Jewish slave teaches us that his body is a financial asset, the harm of which justifies compensation. The evaluation of this compensation, like all payments of damage, is for the depreciation in value of the damaged object, and the manner to evaluate this is by way of a non-Jewish slave.[27]

 

            Here is the place to note that this evaluation as a non-Jewish slave is exceedingly difficult to actualize today when we are living in a period when fortunately there is no longer a slave market. Much study is therefore needed to arrive at a manner by way of which the law of the Mishna can be realized in this new reality.

 

(Translated by David Strauss)

 

Sources for the Next Shiur (no. 14)

 

            We shall not deal with the issue of "acting as their agents," an issue that by its nature belongs in tractate Sanhedrin, even though it is important with respect to a court's ability in our time to apply in practice the laws of Bava Kama in general, and those of chapter Ha-Chovel in particular. It is therefore recommended to learn the passage independently, if only superficially. The next shiur will deal with the payment made for tza’ar. Learn the Gemara from p. 84b at the colon, "tza'ar keva'o," until p. 85a at the colon, "rippui." Additional sources:

 

1) See once again the dispute between the Rambam and the Ra'avad, Hilkhot Chovel u-Mazik 5:6, and think about the various rationales regarding tza’ar.

 

2) Tza’ar where there is depreciation resulting from injury and where there is no depreciation resulting from injury. In addition to the Gemara on p. 84b, see also 85a, bottom, "tana ve-kulan mishtalmin… liten tza'ar bi-mekom nezek." Try to explain the difficulty with imposing liability for tza’ar when there is depreciation resulting from injury and where there is no depreciation resulting from injury. See Tosafot 26b, s.v. hai [85a, s.v. le-damim]; Rashi, Shemot 21:25.

 

3. Assessing tza’ar – Think about the assessment mechanism discussed in the mishna: what is unique about it and how does it relate to the usual manner of assessing damage? See Rashi on the mishna, s.v. ke-yotze, and Rambam, Hilkhot Chovel u-Mazik 2:9. What does the Rambam add to Rashi? What do you think about this addition?

 

4. Try to explain the Gemara's distinction on p. 85a between "what he is willing to accept" and "what he is willing to pay."

 

5. Additional sources: Rosh, chap. 8, no. 1; chap. 6, no. 9.


[1] I have no cogent explanation as to the location of chapter Ha-Chovel between the laws of theft in chapter 7 and the laws of robbery in chapter 9; but certainly its separation from the laws of damage caused by a person's property discussed in the first six chapters of the tractate is striking.

[2] The Rambam arranged his Sefer Nezikin in ascending order of severity. The book opens with the laws governing damage caused by a person's property (Hilkhot Nizkei Mamon). It continues with the laws of theft (Hilkhot Geneiva), where the person himself puts his hand on another person's property. From there it moves on to the laws of robbery (Hilkhot Gezeila); though robbery is less severe than theft from the perspective of the sin committed between man and God (Bava Kama 79b), it is more severe with respect to its violent and abusive nature.

Before the Rambam presents the most severe category, the laws of murder (Hilkhot Rotze’ach), he records Hilkhot Chovel u-Mazik, the laws governing one who causes an injury to another person (though he brings together the laws of injury and the laws of damage caused by the person himself, it would seem that the latter are tacked on to the former). One who inflicts injury upon a person is not a murderer, but it is very significant that the Rambam joins the laws of injury to the laws of murder, and not to the laws of damage caused by a person's property. This phenomenon already finds expression in the order in which these laws are recorded in the Torah.

[3] See, in this direction, M. Ben Yashar, "Al Ayin Tachat Ayin," Megadim XXVI, 135 (5756).

[4] It should be noted that the Rambam (Hilkhot Chovel u-Mazik 1:6) writes: "Even though these interpretations are obvious from the study of the Written Law, and they are explicitly mentioned in the Oral Tradition transmitted by Moshe from Mount Sinai, they are all regarded as halakhot from Moshe. This is what our ancestors saw in the court of Yehoshua and in the court of Shemuel of Rama, and in every single Jewish court that has functioned from the days of Moshe our master until the present age."

See the Maharshal in his Yam shel Shelomo, on our passage, no. 1, who comments: "I do not understand his words, for surely the Gemara expounded several verbal analogies and several verses regarding this matter; what need is there then for a tradition handed down from one person to the next." This requires a lengthy discussion, but this is not the forum for such expansion.

[5] The Arukh ha-Shulchan (420:7) chooses to continue in this vein, adding an interesting suggestion of his own; see there.

[6] So it would appear from the Meiri, that this is what is introduced in the conclusion: "Not only when the party who caused the injury agrees to this, but even if he was crying out that he should be blinded just as the other person was blinded, we do not listen to him." 

[7] There is also a third possibility, that the court should decide based on the circumstances of the case whether or not it is preferable to impose the more severe punishment. Remnants of this understanding are found, according to Rav Yaakov Meidan, even according to the Gemara's conclusion, in various statements of the Rishonim, that in the case of especially violent individuals who are not deterred by financial penalties, the court is authorized to impose corporal punishments. See, for example, Tosafot and Tosafot ha-Rosh, Sanhedrin 58b. Rav Meidan sees this as an expression of the understanding that Scripture is never altogether bereft of its plain sense.

[8] Rabba suggested a different explanation, that he is not evaluated as a slave. Abaye objected to this explanation, arguing that a freeman does not have a value, and therefore the sugya cites the words of Rav Ashi. What does Rabba think? It is difficult to know, but the following may be suggested: The Rosh at the beginning of our chapter, based on the Gemara above, p. 47a, according to Rashi ad loc., s.v. be-kote'a, explains that the law of the mishna, that payment for injury is calculated according to the depreciation in value of the injured party as a slave sold in the market, is a law the intent of which is to be lenient with the person who caused the damage.

This stands in contrast to the alternative possibility that we should activate an evaluation mechanism similar to that which the Mishna applies with respect to pain, namely, that we evaluate the sum of money for which a person would be prepared to give up his hand. (The Rosh and Rashi moderate this a bit, and even at the stage of the initial assumption of the Gemara present a more modest amount – in exchange for how much money would a person be prepared to allow his slave's hand to be cut off, this as opposed to the mechanism regarding pain, namely, in exchange for how much money would the injured person be ready to suffer the pain in question.) It is possible that according to Rabba this is the position of Rabbi Eliezer: The law of "an eye for an eye – literally" says that the injured person should not be evaluated as a slave, bur rather he should be compensated with the sum in exchange for which he would be prepared to give up his eye.

[9] See the words of Rabbeinu Chananel, above, p. 27a: "The value of the person who caused the damage – this means: The person who caused the damage was liable for the death penalty; since he did not watch over his ox, it is as if he killed him, but the Torah had compassion for him that he should pay a ransom, since he did not perform an act with his hands." What he says seems to contradict the Gemara's conclusion on p. 40a. The matter requires further study.

[10] The first six halakhot in the Rambam's Hilkhot Chovel u-Mazik cite various sources for the law governing the payment for injury, and the relationship between them requires further examination. I will focus here on the principle arising from halakha 3.

[11] Regarding half damages, we saw in the past the Amoraic dispute whether it is a kenas or a chiyuv mamon.

[12] Hilkhot Chovel u-Mazik 5:6. The Rambams's source is the Ri Migash in his novellae to Shevu'ot 46b, s.v. matni ha-nechbal.

[13] And similarly boshet for a different reason.

[14] See, for example, Kehilot Ya'akov, no. 39; Kuntrusei Shi'urim, Bava Kama, shiur no. 21, and elsewhere.

[15] Afterwards I saw a similar argument in Iggerot ha-Grid ha-Levi, p. 246, s.v. teirutzkha.

[16] It is possible to arrive at this conclusion from a different direction. Rav Shlomo Fisher, in his book, Beit Yishai, no. 76, argues that two laws were stated regarding one who causes an injury to another person. One law relates to a person's responsibility for his actions as a subject (gavra); the other law is a person's obligation to watch over his body, just as he obligated to watch over his animals that they not cause damage. From the perspective of the second law, the person's body is like an animal that requires watching over. Rav Fisher argues that in the case of a person who unintentionally causes injury, there is only this second law: He is not treated as a subject that caused damage, but merely as one who was negligent in watching over his body.

            In light of this, he adds, we can understand why someone who unintentionally causes an injury is not liable for the four payments, for the four payments are a novelty in the law of a person who injures another person, and when he acts unintentionally, it is a type of damage caused by one's property – a person is obligated to watch over his body, and he did not adequately watch over his body that went off and caused an injury. In such a case there is only liability for the payment of nezek, but not for the four other payments. According to this, it stands to reason that when a person causes an unwitting injury, his liability falls into the category of a chiyuv mamon, similar to the case of an animal that caused an injury to a person. But as is stated in the text of this shiur, this novel idea has no foundation in the words of the Rambam.

[17] Rav M. Breuer, "Ayin tachat ayin," Megadim 24 (5795), 21.

[18] My colleague, Rav Yoav Shacham, in his article, "Yesod Petur Adam be-Bor," Alon Shevut 169 (5768), 43, 48, adduces support for Rav Breuer from the words of Rabbi Yehuda HaLevi in his Kuzari, III, 47: "It is not said: 'If anyone kills your horse, kill his horse,' but 'take his horse, for what use is it to you to kill his horse?' Likewise: If anyone has cut off your hand, take the value of his hand; for cutting off his hand profits you not."

[19] I am well aware that it is possible to disagree with this argument – the Torah may have had pity for the injured person who, angry with the person who caused him the injury, may prefer to punish the latter rather than secure his own financial future, but later he may come to regret his decision.

[20] The Even ha-Ezel (Hilkhot Chovel u-Mazik 5:6) relates to this point in a different context. He does not deal with the payment for shevet were we to understand "an eye for an eye" in its literal sense, but rather with the Rambam's position that when a persn who caused an injury admits his guilt he is liable for the payments for shevet and ripuy, but not for the payment for the injury. In his view, the payment for shevet in such a situation must include – as a chiyuv mamon, of course – all future loss of income. He notes, however, that such a claim cannot be presented at the time of the injury, for we don't know how many years the injured person will live. To this it may be added that there is a halakhic problem with suing for future damage (as opposed to payment for damage or injury, which compensates a person for the damage or injury that was already suffered). Therefore, the injured person can submit a claim at the end of each year for his loss of earnings over the course of the previous year.

A third case in which this question can be examined is in a suit presented in our time according to the Shulchan Arukh (1:2) that today's courts are only authorized to impose payments for shevet and ripuy. If we understand that it is only the actual payment for injury that restricts the scope of the obligation to offer compensation for shevet, it turns out that the courts today can – based on the strict law and even according to the Shulchan Arukh – collect in the framework of the payment for shevet all loss of earnings, as a chiyuv mamon. It is possible, however, that the suit can only be presented at any given time for the shevet that was already incurred. On the practical level, this limitation seriously impairs the victim's ability to collect what is due him, and it seems that a way should be found to overcome this difficulty.

[21] The plain sense of the word "shevet" (loss of livelihood) relates exclusively to the period during which the injured person is "mushbat" (totally incapacitated and unable to work), as the verse already reflects the balance between the two aspects.

[22] As stated above, it is possible that when there is no payment for injury this is indeed the law, as the Even ha-Ezel understands the Rambam in a case where the person who caused the injury admits his guilt and thus exempts himself from paying for the injury. It should be noted, that were the slave market to operate in perfect manner, there would be no disparity between payment for nezek and payment for shevet, for the depreciation in the slave's value would include all loss of future earnings. In such a situation there would be no need for a split between payment for nezek and payment for shevet, for the price at which the slave would be sold would take into account the immediate future during which time the slave will be incapacitated. The two separate payments exist because a perfect slave market does not exist and never existed.

[23] Above, in note 8, I proposed that that this is Rabba's understanding of Rabbi Eliezer in practice.

[24] So writes Rashi, p. 86a, s.v. shaiminan, with respect to humiliation.

[25] In contrast to the Rishonim that I will immediately cite, and in contrast to my assumptions about economic reality, the Tosafot Rid (p. 85a, s.v. tza'ar) assumes that the only difference between evaluating a person as if he were a slave sold in the market and evaluating how much a person would pay so that his hand should not be cut off, is the value of the boshet (and the tza’ar if the amputation is performed without anasthesia), that is to say, with respect to the payment for nezek, there is no difference between the two evaluations. In my opinion, this understanding is very difficult and surprising.

[26] For other explanations of the alternative evaluation that might have been suggested with respect to a cut-off hand, see Ra'avad and Talmid Rabbeinu Tam,p. 47a.

[27] See similarly in the words of Rabbeinu Yehonatan quoted in the Shita Mekubetzet at the beginning of the chapter: "We see him as a non-Jewish slave… for he injured him and caused him this financial loss, that if he was in need, he could have sold himself as a Jewish slave." However, the Tosafot in Megila 23b, s.v. shamin, seem to imply otherwise. The issue there is a person who takes a vow, "My value is upon me," i.e., that he must pay the Temple treasury his value as a slave sold in the market. The Tosafot assume that the value of a Jew is his value as a Jewish slave, because this is the only way that he can sell himself. It would seem that we can conclude from this that the evaluation for the payment for injury should also be as a Jewish slave. It is, however, possible to reject this proof. When a person vows: "My value is upon me," we are dealing with a vow the wording of which must be interpreted, and it is reasonable to assume that the person's intention is his market value, and this is his value as a Jewish slave. This, however, is not the precise value of his body, which is his value when it is sold absolutely in the slave market, i.e., as a non-Jewish slave.