Payment for Healing

  • Rav Shmuel Shimoni

 

I. Healing and its relationship to depreciation resulting from injury[1]

 

If he rises again, and walks abroad upon his staff, then he that struck him shall be acquitted: only he shall pay for the loss of his time (shevet), and shall cause him to be thoroughly healed (ripuy). (Shemot 21:19)

 

The Torah commands that one who causes an injury to another person (chovel) must see to the healing of the injured party (nichval). This is one of the five obligations of a chovel be-meizid (intentionally). When an animal injures a person, when a person is chovel be-shogeg (unintentionally), or when a person injures an animal, there is no liability for ripuy, but only for the nezek (depreciation in value resulting from the injury). This exemption from liability seems to be based on the law of gerama, indirect damage, and that the liability imposed upon a chovel be-meizid is a Scriptural decree unique to the severe case of chovel.[2]

 

   This separation between ripuy and nezek resulting from injury may not, however, be absolutely correct. Ostensibly, ripuy and nezek are related, for often the ripuy is required, among other things, to lessen the nezek. If the nichval or animal does not receive medical treatment, the damage will grow beyond what is necessary. Medical treatment is therefore in the interest of the chovel in order to reduce his liability, and there is room to say that it should be calculated into the payment made for the nezek.[3] This approach was adopted by the author of Responsa Shevut Ya'akov (III, no. 178), who deals with one who was mazik (caused damage to) his neighbor's animal (or a shomer who is liable for damage to the animal), and writes: "If [the owner of the animal] has to pay [the doctor] his fee for healing [the animal], [the mazik] must certainly reimburse him, for in that way he reduces the damage for which he would certainly have to offer compensation."

 

The author of the Netivot ha-Mishpat (340, no. 3)) also maintains that even in situations when there is only an obligation to pay for the nezek, the mazik must bear the costs of the ripuy that reduces the depreciation. In his view, this is part of a general principle regarding damage, that the mazik must bear the costs of the repair. Thus, for example, if a woman soiled her neighbor's dress, she must bear the cleaning expense. Indeed, there are different situations in this regard. Sometimes the cost of dry cleaning may be greater than the value of the garment, and it is not clear whether in such a situation the person who caused the damage is liable. But at least in a case when the depreciation in value of the garment would be 100, and cleaning the garment would completely repair the damage at a cost of 10, the position of the Netivot is that the person who suffered the damage can demand only 10 from the person who caused the damage as an ordinary payment of damage. The same applies, according to the Netivot, to the cost of ripuy, which is merely one way to repair the damage.

 

The Netivot adds that even in the case of a chovel be-meizid, so that he is liable for the four payments, ripuy that is essential for repairing the damage is included in payment for the nezek, and not payment for ripuy: "For when he cannot become healed without a doctor, it is included in nezek, for there is certainly a depreciation in his value were he to be sold when he does not heal himself at all." This is distinct "from the ripuy mentioned in the Torah, where he can return to his original health even without treatment, only that treatment speeds up his recovery." According to the Netivot, the ripuy mentioned in the Torah is exclusively ripuy that is not connected to the injury, e.g., ripuy where there is no depreciation resulting from the injury, or ripuy that hastens the recovery and repair of the damage.[4]

 

One could, however, accept the first ruling of the Netivot, regarding situations when there is no special law of ripuy, but reject his second ruling. It could be argued that in the case of intentional injury, ripuy is a distinct and independent obligation that includes all the medical expenses, and thus leaves the payment for injury to cover the final damage given that there was healing.[5] The practical difference would be according to the Rambam (Hilkhot Chovel u-Mazik 5:6-7), which we saw in previous shiurim, that liability for nezek is a kenas (penalty), whereas liability for ripuy is a chiyuv mamon (monetary obligation). For according to the Netivot, payment for treatment that is necessary for fixing the damage is a kenas, whereas according to our proposal it is a chiyuv mamon. There is another practical difference according to the position of the Shulchan Arukh (1:2) that the only payments that we collect today from a person who caused an injury are the payments for shevet and ripuy.

 

It should be noted that the approach of the Shevut Ya'akov and the Netivot was disputed by the Chazon Ish (Bava Kama 13, 1-2). According to the Chazon Ish, medical costs always fall into the category of gerama, and in the absence of a special Scriptural decree, they cannot be imposed upon the chovel. Based on this the Chazon Ish concludes – and here the matter becomes more outrageous, though the halakhic logic involved is understandable – that if the nizak (injured party) chose not to heal himself or his animal, the mazik is not liable for the greater damage that resulted, for it is the nizak who caused the damage; and if the nizak acted properly and laid out money for his medical expenses, the mazik is not obligated to reimburse him. The Chazon Ish likens the causing of an injury that is amenable to healing to the tying up of an animal's feet, which requires the owner to exert himself and untie them, but this is not considered damage.

 

As for "healing mentioned in the Torah," the Chazon Ish would of course include all the treatments that are required for the healing of the injured party, including treatment that is necessary to prevent depreciation in value. We have suggested that it is possible to adopt this position even if we accept the view of the Netivot that even in situations which are not covered by "and he shall cause him to be thoroughly healed," there is a duty to repair the damage, but as stated, the Netivot disagrees.

 

A third approach to this issue is presented by the Ra'avad.[6] His words are part of a complicated passage on p. 85b that we will discuss in the next shiur, and therefore I will not expand upon them here. I will merely note that the passage there deals with a person who was injured so badly that he is treated as a "total loss," and the Gemara describes him "as though he killed him." Should such a person be injured again, it would seem obvious that there is no longer room to impose payments for nezek or shevet, because the person has already lost all capability to work. Nevertheless, there is liability for tza’ar (pain) and boshet (humiliation), as he is still a human being suffering with his injuries. According to most Rishonim, when another injury is inflicted upon such a person, there is also liability for ripuy, as this liability is not connected specifically to repairing the damage – there is liability for healing even where there is no depreciation resulting from the injury.

 

The Ra'avad, however, disagrees. In his view, there is no liability for ripuy in such a case, and this is because "there is no ripuy for the dead." Since even the Ra'avad agrees that the injured party here is not really dead, and therefore there is liability for tza’ar and boshet, we must conclude that according to the Ra'avad the essence of the liability for ripuy that is mentioned in the Torah is fixing or limiting the damage. The law of ripuy was stated in the Torah together with the law of boshet ("Only he shall pay for the loss of his time, and shall cause him to be thoroughly healed"). And both of them – along with liability for the depreciation resulting from the injury – deal with an impairment of the economic abilities of the injured party and restoring him to his original state. Medical treatment that does not relate to his economic impairment is not included, according to him, in "and he shall cause him to be thoroughly healed." There is liability for ripuy even when there is no depreciation resulting from the injury, but it stands to reason that the Ra'avad would limit this to the situation when injury was caused, but the injury can be fixed through the healing, and for such healing the Torah certainly imposes liability.

 

It stands to reason, of course, that the Ra'avad agrees with the position of the Chazon Ish, that in situations when there is no Scriptural decree of "and he shall cause him to be thoroughly healed," there is no liability for ripuy, not even that which repairs the damage. The Ra'avad adds that the novelty in the law governing a chovel is liability for ripuy that repairs the damage.

 

If so, as for the scope of the liability of "and he shall cause him to be thoroughly healed," we have proposed three approaches. Two of them restrict the liability in opposite ways: The Netivot maintains that the verse is dealing here exclusively with ripuy that is not necessary for fixing the damage (for otherwise it would be included under nezek); whereas the Ra'avad maintains that the only ripuy for which liability is imposed is ripuy that repairs the economic damage connected to ability to work. As stated, however, most Rishonim do not accept the view of the Ra'avad, and it seems to me that they do not even accept the view of the Netivot. It seems, therefore, that the dominant view is that liability for ripuy includes all the expenses for treatments that are necessary for the possible healing of the nichval, both those that are necessary to fix the damage, and those that are need for other purposes, and the payment for depreciation resulting from the injury is fixed in consideration of the damage that remains after the medical treatments.[7]

 

II. THe Nature of the liability for Ripuy mentioned in the torah

 

            Let us now attempt to clarify the nature of this liability. We have already referred to the position of the Rambam that the payments that must be made for nezek, tza’ar and boshet are regarded as a kenas. He does not hold this view with respect to ripuy, despite the fact that similar to tza’ar and boshet, this liability is also a special law that the Torah introduces in the case of chovel:

 

If, however, there are no witnesses there at all, and the injured person states: "This person injured me," and the accused admits doing so, he is not liable for the assessments for nezek and the tza’ar. He is, however, liable for the assessments for shevet, boshet and ripuy, because of his own admission….

Why should a person pay these three assessments on the basis of his own admission? The assessments for shevet and ripuy represent a chiyuv mamon and are not considered to be a kenas. For if he does not reimburse the injured person for them, he will have caused him to forfeit the money he spent for his healing and the money he lost through unemployment.

 

            According to the Rambam, even if the damage is indirect, the damage is financial damage of the general type with which we are familiar, and therefore once the Torah imposes the liability, it is a chiyuv mamon. We learn from the words of the Rambam that the liability for healing is for the monetary loss caused by the medical expenses, for his "forfeiting the money he spent for his healing." Therefore this is a clear case of indirect damage, but at the same time clear financial damage.

 

            Logically, however, there is room for a different understanding, according to which what creates the liability is not his causing a need for a doctor, but rather the wound inflicted on the body. The novelty in the law of chovel lies not in the Torah's recognition of the wound as damage, as this is not indirect damage. Rather the novelty lies in the obligation that is imposed in the wake of the wound; the Torah teaches that in the case of chovel, the wound creates an obligation for the chovel to see to the healing of the wound of the nichval.

 

            Based on this understanding we can take one further step and argue that the nature of the obligation imposed by the Torah is not at all that of financial compensation. If we examine the opening mishna in our chapter, we see that there is a linguistic difference between the law of healing and the other four payments. The other four payments are obligations of compensation: "A valuation is made as to how much he was worth [previously], and how much he is worth now"; "We calculate how much a man of equal standing would require to be paid to undergo such pain"; "the injured person is considered as if he were a watchman of cucumber beds." In contrast, regarding ripuy it simply says: "He is obligated to heal him." The fundamental obligation is not to pay the medical costs, but to heal the injured party. The truth is that this is explicit in the wording of the verse: "Only he shall pay for the loss of his time, and shall cause him to be thoroughly healed" – he pays for the shevet, whereas with respect to ripuy, the obligation is to cause the injured party to be healed. In practice, the person who caused the injury does not serve as the doctor (as we shall see below), but rather covers the medical costs, but this is merely a practical way for him to fulfill his fundamental obligation.[8]

 

            This understanding that liability for ripuy is not fundamentally a financial obligation, but rather an obligation to cause the injured party to be healed, was adopted by the Kovetz Shiurim (Ketubot, no. 218), in the framework of a discussion of a passage that we will deal with in the future. The Gemara in Gittin 12b states that even though one who causes an injury to another person's non-Jewish slave pays the five payments to the slave's master, the money for his ripuy is intended for the slave, "for he must be healed with it." The Kovetz Shiurim maintains that were this a chiyuv mamon, the slave's master would acquire it, if only by way of the law that "that which was acquired by a slave belongs to his master." Since the obligation is to heal the injured party, the slave has no monetary right to the ripuy that is acquired by the master. As stated, this issue is not our concern today, and I discussed it only to illustrate this understanding of the liability for ripuy.

 

            The Kovetz Shiurim adds that were the injured party to die before receiving payment for ripuy, the person who caused the injury would not be liable to pay the injured party's heirs, as this is not a financial obligation, but rather an obligation to cause healing, and there is no longer anybody who is in need of healing. This argument requires further investigation, for it forces us to clarify whether at any point the obligation becomes translated into a chiyuv mamon. What if, for example, the injured party already received his payment but then died before he was healed? Can the party who caused the injury demand his money back? The matter requires further examination.

 

            Here is also the place to relate to two of the possible demands that the Gemara addresses at the end of our passage:

 

If the person who caused the injury says to the injured person: "I can heal you," the other party can say to him: "You are in my eyes like a lurking lion" …

If, on the other hand, the injured person says to the person who caused the injury…: "Make it a fixed and definite sum," the person who caused the injury can say to him: "There is all the more danger that you might neglect yourself [and thus remain a cripple], and I will consequently be called 'a harmful ox.'"

 

            Our understanding of these rulings will vary slightly in accordance with our basic understanding of liability for ripuy. The first law relates to a case when the person who caused the injury offers his services as a doctor. According to the understanding that the fundamental obligation is to cause the injured party to be healed, he is interested in fulfilling his fundamental obligation, and the novelty here is that the injured party can say to him that he does not want to be treated by him and that alternative treatment must be arranged (and it turns out then that the person who caused the injury cannot fulfill his obligation to cause healing in its plain sense). According to the Rambam's approach, on the other hand, the assumption is that the injured party goes to a doctor and has expenses, and the role of the person who caused the injury is to cover these costs. In the case under discussion it is the person who caused the injury who proposes a change that he personally take over the healing process, and there is no real novelty in the fact that we do not allow him to do so. However, were it not for the argument that "you are in my eyes like a lurking lion," it would be "behavior characteristic of Sedom" to charge the person who caused the injury for the expenses and not allow him to repair the damage himself.

 

            The second law relates to the situation in which the injured party prefers to receive in his hands a fixed sum that he can spend as he pleases. According to the understanding that we are dealing with an obligation to heal, it is difficult to understand the basis for such a request, and it seems that we must understand that the injured party wishes to use the money for medical treatment, only that it is important to him to oversee it himself, and the person who caused the injury is permitted not to rely on him. According to the Rambam's approach as well, it would seem that the obligation is created by the fact that the injured party has medical expenses (and the Gemara's answer should have been that the person who caused the injury does not rely on the injured party that he will heal himself, and therefore it will turn out that the money had been collected from him without justification). It can, however, be argued that since the injured party has the right to spend money for his medical treatment and then receive reimbursement, there is room to say that he is entitled to receive the money in his hand, as he now has a monetary entitlement.[9] In any event, the rejection of this proposal is based on the fact that the person who caused the injury does not want to be called "a harmful ox." While it stands to reason that the person who caused the injury cannot coerce the injured party to accept treatment, he can insist that money should only be collected from him for the purpose of the true healing of the injured party.

 

            We dealt in this section with the basic definition of liability for ripuy, and it is possible that it will occupy us also on the next page of the Gemara and in other passages later in the chapter. Before concluding, I wish to point out that the Rishonim on our passage note that it does not relate to an important law in tractate Bava Kama in general and in chapter Ha-Chovel in particular, namely, the law of estimating the damage, that the court is authorized to estimate the damage in the aftermath of the injury in consideration of all the facts and the expectations about the future that follow from them, and to impose liability in accordance with their estimate, such that what actually happens afterwards has no impact, whether to the benefit of the person who caused the injury or to the benefit of the injured party. This important issue is not our concern today, but it has a certain connection to the scope of the liability for ripuy. We see this in the words of the Rambam (Hilkhot Chovel u-Mazik 2:14, 16) in the framework of the laws dealing with healing:

 

How is the liability for ripuy evaluated? We estimate how many days this ailment will last and what will be required to treat it. The person who caused the injury is required to give this sum immediately. We do not require him to make payments day by day. This is an enactment in favor of the person who caused the injury….

When does the above apply? When the person who caused the injury agrees, for this enactment is to his benefit. If, however, the person who caused the injury says: I do not desire that this enactment be followed; instead, I will pay his medical bills day by day," we listen to him.

 

            According to the Rambam who maintains that liability for healing is essentially a financial liability for the medical expenses that were incurred, this estimate is an enactment that was made in favor of the person who caused the injury, that he should pay the entire sum in one payment, and thus know with certainty the extent of his liability. If, however, liability for healing is not at all a financial liability, but rather an obligation to cause the injured party to be healed, the law of an estimate is more revolutionary, for it translates the obligation to cause the injured party to be healed into a fixed chiyuv mamon with a sum that does not change.

 

III. Ulcers arising on the body of the injured party

 

            Already when the mishna explains the basic law of ripuy, it quickly relates to the fact that there may be damage that is not a simple and direct result of the wound, but rather a later complication. The truth is that there is a rainbow of cases with respect to the connection to the original wound. At the extremes, we find at one end cases of clear and direct damage, for which the person who caused it is clearly liable, and at the other end damage that was not at all caused by the wound, for which he is certainly not liable. The interesting cases, of course, are found in the middle, and require a delicate balance between the interests of the chovel and nichval.

 

            The Gemara cites a Baraita that lists three Tannaitic opinions, and suggests two understandings of the Baraita. According to the Rabbis of the school of Rav there is a disagreement whether a wound may be bandaged by the injured party.[10] If a wound may be bandaged, then the ulcers that arose because of the bandage are considered a result of the wound, and there is liability for shevet and ripuy. If it may not be bandaged, there is no room to impose liability upon the chovel, and it is therefore agreed that there is no liability for shevet.

 

But there is also another disagreement whether there is increased liability for ripuy, to bear the expenses of consequences that do not naturally stem from the wound. Rabba understands the disagreement differently. In his view, all agree that a wound may be bandaged, but not too much, and the opinions differ about the case where the wound was bound excessively, whether the chovel is liable also for less necessary results like these, while there is the intermediate position of Rabbi Yehuda, that there is liability only for ripuy. Regarding Rabba's distinction between bandaging a wound the normal amount and bandaging it too much, the Rashba writes that were we to maintain that a wound may not be bandaged at all, the nichval who bandaged his wound would be considered totally negligent, and certainly there would be no room to impose liability upon the chovel for the gross negligence on the part of the nichval. If, however, a wound may be bandaged, but not too much, we see the nichval as negligent, but not as totally negligent, and this already makes room for the various different positions.

 

            It stands to reason that when the nichval is regarded as not totally negligent, the chovel bears the responsibility, even though we are not dealing with the direct consequences of his actions. Therefore even those who impose liability for shevet and ripuy rely on the derivation that expands the responsibility – a chovel is subject to a law that is more severe than the general laws of damage with respect to causality and the exemption granted to a person who caused damage in situations where the person who suffered the damage bears responsibility ("he caused damage to himself"). He should expect that the nichval will want to alleviate his pain even when this aggravates the injury and even when his conduct is not entirely responsible.

 

            Can we understand the logic underlying the difference between shevet and ripuy? If we understand the matter in the way proposed above, that reimbursement for shevet is a chiyuv mamon for loss of earnings, whereas reimbursement for ripuy is liability for the wound, and not for the medical costs following from it (only that the substance of the liability is to heal), it can be argued that regarding ripuy, we are less concerned about the indirectness of the consequences, but rather we are interested in healing the injury and everything following from it. Of course, this argument is not necessary. It is possible that the Torah was simply more concerned about covering the nichval's medical expenses than it was about covering his shevet.

 

IV. Practical questions

 

            I wish to conclude this shiur with several practical questions concerning this issue. Needless to say, I do not come to issue halakhic rulings, but merely to comment and encourage further discussion. In some cases, I will content myself with the raising of the question.[11]

 

            I wish to open with the last topic that we saw, namely, the nichval's negligence. The case discussed in the Gemara is rather concrete and localized – ulcers that rose as a result of bandaging the wound. A difficult question is how to draw conclusions from this with respect to other medical complications. For example, it is not clear what the law would be in a case when treatment undergone to alleviate pain caused damage further away from the wound than ulcers. If the nichval took too much pain medication and as a result caused himself intestinal or liver damage, is this injury resulting from the wound like ulcers that rose in the wounded area? The matter requires further examination.

 

            So too we must consider the degree to which the nichval is obligated to follow medical advice and undergo procedures that could significantly reduce the injury, and thus reduce the liability of the chovel. This question can be of great significance with respect to ripuy, but also with respect to nezek. For example, if the nichval refuses to undergo surgery, do we view him as negligent about his condition (and perhaps even totally negligent, and thus exempt the chovel from liability for damage that could have been prevented had the nichval had the surgery)? It stands to reason that here too some cases are clear-cut. If there is no good reason to refuse the surgery, the chovel is not responsible for the nichval's unreasonable decision to refuse the surgery. On the other hand, the nichval can certainly not be expected to agree to a new and untested procedure. But there is certainly a wide range of intermediate cases regarding which a decision must be made between the conflicting interests, and that require careful consideration on the part of the halakhic authorities.

 

            From here I wish to move on to general questions about ripuy. As a rule, liability for ripuy (and as I mentioned in the previous shiur, tza’ar as well) is an obligation that lends itself in great measure to the influence of medical advances, so that there may be different levels of liability at different times for the same injury. On the assumption that there is liability for ripuy in a case where there is no depreciation resulting from the injury, and medicine has come up with a new and expensive treatment that can heal the injury, this innovation has increased the liability of the chovel. In contrast, when one breaks the leg of another person, medicine allows for simple, inexpensive, and efficient treatment that will repair the break within a few weeks, while the same injury in a different period would apparently have yielded much greater liability for depreciation resulting from the injury, for the injured party would have turned into a cripple. Here medicine has substantially reduced the liability of the chovel, and shifted it from liability for injury to liability for healing. [When a person unintentionally breaks the bone of another person, according to the Netivot he is liable for the cost of the cast under the heading of nezek, but according to the Chazon Ish, he is exempt from all obligation.]

 

            Which expenses are included under the heading of ripuy? The Yerushalmi at the beginning of our chapter says that when the injured party cannot eat his regular food, but only more delicate and expensive food, the chovel is obligated to provide him with that food. The Rema (420:3, in the wake of the Nemukei Yosef, ad loc.) codifies this ruling as law, and includes this in the law of ripuy: "There are those who say that he must give him the additional food that he needs during the period of his illness, over what he would eat when he was healthy. It seems to me that this is included under the heading of ripuy." In the case under discussion, the need for the extra food seems to be temporary, and therefore we can say that it is part of what is needed for the nichval's recovery. It would seem, however, that the same law would apply in a case where he will need the special food for the rest of his life. If this is correct, it turns out that the liability for ripuy is broader than what is needed to repair the damage, and it involves doing all that is possible to liken the nichval's present situation to his situation prior to the injury. A relatively simple conclusion that may be drawn from this is that the healing of an amputee includes the provision of a prosthetic device (for this there is no need for the Yerushalmi). It seems, however, that we can take this one step further, and impose liability for nursing care, when the nichval's functioning has been impaired. Nursing care is part of what can be provided in order to allow the nichval to simply function the way he had in the past. Here there is room for exceedingly broad liability, which must be carefully defined.

 

            What is the law governing pain-reducing medications, which do not improve the nichval's medical situation, but do reduce his suffering? In other words – if a wound may be bandaged, is it possible to demand of the chovel to pay for the bandage? It may be argued that ripuy is not merely another one of the payments of the chovel, which are a list of various damages suffered by the nichval. Ripuy is not just another type of damage, but rather (at least according to one understanding that we saw) an obligation of the chovel to repair the damage to the extent possible. The damage may relate to the nichval's situation in the sense of depreciation resulting from the nezek and shevet. But the damage may also be tza’ar and boshet[12] (and there is also liability for ripuy where there is no other damage). Therefore, anti-pain medications are part of the repair of the pain. As for boshet, there is room to consider whether it is possible to impose liability for the cost of esthetic treatments, e.g., plastic surgery, tooth implants, and the like.

 

            The Tzitz Eliezer (XXI, 58) was asked an interesting question by Rav Avraham Sofer:

 

What is the law in the case when Reuven struck Shimon hard on his head and his entire body, and owing to the great pains in all parts of his body, Shimon went to the hospital where he was examined by specialists, and he also underwent blood tests and x-rays. In the end it turned out that he did not suffer any internal injuries, and he was discharged. Who is liable to pay the hospital bill? For Reuven argues that these tests are not included under the heading of ripuy, for it was found that he suffered no internal damage… In contrast Shimon argues that this is the way of the world that a person in his situation undergoes tests in order to determine whether indeed his body was injured, and therefore is incumbent on the chovel to pay. In effect, I am in doubt as to what is called " ripuy." Does it refer to the actual healing procedure, e.g., surgery (which is expensive) or the prescription of medicine (which is inexpensive), or does "healing" include all that is accepted today in medicine, i.e., the doctor's time (including specialists) and laboratory tests, x-rays, and the like, even if in the end the injured party will not need any medication or medical procedure for his recovery?

 

            The Tzitz Eliezer decides that since the nichval must undergo these tests, they are included in the law of ripuy. According to the Rambam's approach, that the liability for ripuy is for the medical expenses that resulted from the injury, it is clear that if the injury led directly to expenditures for tests, liability can be imposed for them. If, however, the obligation is to heal the injury, there is a greater novelty here in that we recognize the tests as part of the healing process. Nevertheless, this should be expected – the Torah commands the chovel to see to the healing of the nichval, and this includes conducting tests, even if in the end they do not reveal any problems.

 

            In the continuation of that responsum the Tzitz Eliezer deals with a person who was injured in a fight, went to his health fund clinic and received treatment that is covered by his health insurance – is the chovel obligated to reimburse the nezek. The Tzitz Eliezer connected this question to the general disagreement among the Acharonim concerning liability for damage when there is insurance, in the framework of which some maintain – including the Maharsham and the Or Same'ach – that the mazik is obligated to pay the nizak, and the insurance is a private arrangement between the nizak and his insurance company (an arrangement that he paid for), and it has no relevance to the mazik. The Tzitz Eliezer argues that according to this opinion the chovel would similarly be liable to pay for his victim's ripuy, even if the latter has insurance that does not care about the source of the injury.

 

If, however, we understand that liability for ripuy is not an obligation to pay but rather an obligation to heal, we may possibly come to a different conclusion about the matter at hand. It is possible that there is a difference between ordinary liability for damage, which is a chiyuv mamon that the mazik owes the nizak, and it is not affected by insurance, and liability for ripuy, which is an obligation to see to the nichval's healing, about which it may be argued that if the nichval received medical treatment there is no longer any need to heel him.[13] See about this the words of the Kovetz Shiurim mentioned above, Ketubot, nos. 217-218.

 

(Translated by David Strauss)


 

Sources for the next Shiur Shiur 16

 

Payment for the loss of livelihood (I)

 

            In the next shiur and in the following one we will deal successively with a number of small passages in the Gemara that deal with liability for shevet and its relationship to liability for depreciation resulting from the injury (and also the other payments). These passages are discussed at greater length by the Rishonim than were the previous pages. They address fundamental questions regarding the laws of compensation in the case of injury.

 

            For the next shiur, learn the Gemara until p. 85b, "she-kevar natan lo demei yado u-demei raglo." Here are some additional sources concerning the issues that we will be discussing:

 

1. Dehadkei be-indruna – "Where the offender [wrongfully] locked him up in a room": See p. 20a, at the bottom: "Ha-dar be-chatzer chaveiro shelo mi-da'ato… ha ithanet"; Nimukei Yosef [8b in Alfasi (9 lines from the bottom): "Ve-chatzer de-kaima le-agrave-kol sheken le-man deda'in"; Rosh, chap. 8, no. 3: "shevet dehadkei be-indruna."

 

2. Midat ha-din lo lakta – "The requirements of justice do not suffer": Rashi; Tosafot, s.v. de-khi; Ra'avad [see below]; Ba'al ha-Ma'or [30b-31a in Alfasi]; Ramban, in Milchamot, ad loc.

 

3. Determining professional abilities with respect to shevet and depreciation resulting from the injury, in addition to the aforementioned sources – Tosafot, s.v. ro'in; Rosh, no. 4; Yam shel Shelomo [see below].

 

Chiddushei ha-Ra'avad 85b:

 

The requirements of justice do not suffer, for he has already been paid for the value of his hand or for the value of his leg, and they evaluated how much he was worth with a hand, and how much he is worth now without a hand. And anyone who buys him without a hand buys him only as a watchman of cucumber beds, and he reduces the price to that of watching cucumber beds. And whatever he is reduced in value the other one adds to the payment [for depreciation]. For this reason we only assess his shevet now as a watchman of cucumber beds.

 

Yam shel Shelomo, chap. 8, no. 11:

 

It seems that we only evaluate the shevet from [actual] work, but we do not evaluate the shevet from what he could have earned doing business, for who knows whether he would have been successful. And it is not absolute. Even shevet from work, it is only from work that he was used to doing. But if he is not accustomed to work, whether because he is wealthy, or because he is lazy, he does not compensate him for shevet at all. And we do not say that since he could have done work had he wanted, perhaps he would have done work, but now even if he wanted he cannot do it. Nevertheless, because of the uncertainty, that perhaps he would not have occupied himself with work, we make no evaluation. The verse supports me: "Only he shall pay for the loss of his time." It doesn't say "loss of time," but rather "loss of his time," that is to say, the work with which he had originally been occupied.

The Rosh (no. 4) writes: Even the depreciation resulting from the injury is evaluated in this way, in accordance with his craft, for if he was a jeweler, and his hand was cut off, we evaluate him as if he were a slave jeweler being sold in the market place, and how much he is now reduced in value without a hand. But none of the commentators make this distinction. And even those who understand with respect to shevet that we are dealing with an average person, but a jeweler has a different evaluation, did not make any distinction with respect to depreciation resulting from the injury. And this is the plain sense of the mishna: "We evaluate him as a slave sold in the market place." The Torah was lenient with respect to depreciation so that we evaluate him as a slave that is sold in the market place. Even if he is the son of a king, or a great scholar, for whose status there is no evaluation, nevertheless if one caused him an injury and made him deaf, he does not pay him his full value, but merely as a non-Jewish slave. The reason that we are lenient was explained at the beginning of our chapter (no. 1). If so, since the evaluation does not depend on his special status, but only on his being a slave, the evaluation is made with respect to an ordinary person, like a slave who does not have a craft, but only toils and carries, and does all kinds of domestic chores, like the rest of the slaves. We evaluate only with respect to his body, e.g., a tall person, strong, and handsome, obvious things that are evident to the eye. We evaluate how much he was worth with that organ, and how much he has been reduced in value. But whatever depends on a person's craft and intelligence, there is no evaluation for that.

 


[1] This shiur will deal with the liability of one who causes an injury to another person to pay for the victim's healing, which is learned from the verse, "And he shall cause him to be thoroughly healed." There are also other matters that are derived from these words in the framework of the derivation discussed in our passage: "'And he shall cause him to be thoroughly healed' – from here we learn that permission was granted to a doctor to heal." One matter learned from those words is the definition of a doctor as one who acts with permission, and his liability (for damage and for exile) for damage caused by his actions – see, for example, at length the Ramban in his Torat ha-Adam that is cited in the Ma'arava edition of the Chiddushei ha-Ramban (ad loc.). Another issue is the very permission to seek the help of doctors, about which the Rambam (Commentary to the Mishna, Pesachim 4:10) disagrees with the Ramban (commentary to Vayikra 26:11). For further study of this issue, see the shiur of R. Ohad Fixler.

[2] The Mordekhai (chap. 9, sec. 114) tries to explain the difference between healing an animal, for which there is no liability, and healing a person, for which there is liability, but I do not understand his distinction.

[3] Even if we don't say that the person who caused the damage is directly liable for the cost of the healing, it would seem that at least with respect to the animal, it stands to reason that we make an assessment of the damage, saying that its value decreased in light of the permanent damage and the cost of treating the damage that is not permanent. This is what the Maharshal (Yam shel Shelomo, later in our chapter, no. 22) seems to say: "The exemption from liability for ripuy in the case of an animal means that one does not pay for ripuy separately and apart from the nezek. But it is obviously included in the nezek, for example, if it has a wound that requires medical treatment, we evaluate how much it has decreased in value, for its value had decreased in the amount that must be paid out for the medical treatment."

[4] I subsequently saw that strong support for the Netivot is found in the words of the Or Zarua (Bava Metzia 262, in the name of the Ritzba): "Any injury that requires spending money for it to be healed and that will not heal on its own... is considered a full injury and a full depreciation."

[5] Just like (we shall examine this issue in future passages) nezek does not include shevet, even though it would be possible to say that the market value of a slave is reduced if he will not be able to work in the coming year.

[6] I have related to the words of the Ra'avad as they are quoted in the Shita Mekubetzet at the end of p. 85b. In Chiddushei ha-Ra'avad (ad loc.) there are several additional lines, and they might shed a different light on the Ra'avad's position. A fuller examination of the Ra'avad's position will be conducted in the shiur about shevet.

[7] As stated above, this is true even if we adopt (and I am so inclined) the position of the Netivot that when there is no liability for ripuy, the cost of healing that repairs the damage is included in nezek.

[8] There are those who maintain that in general the fundamental obligation of a mazik is to repair the damage, and that payment is merely a substitute. A relatively simple conclusion that may be drawn from this is that when the repair cost is greater than the depreciation in the value of the property (e.g., if he broke a window in another person's house), the person who suffered the damage may demand the cost of the repair (though as I mentioned earlier, further study is required about the situation in which the repair cost is much greater than the loss in value). There are, however, those who maintain that one may demand of the person who caused the damage that he actually repair the damage. This is implied by the words of the Ra'avad (Hilkhot To'en ve-Nit'an 5:12) that if one dug holes in another person's field, thus damaging the property, the owner of the field can demand that he repair the holes. The Maggid Mishneh (ad loc.) questions this ruling ("The plaintiff does not have the power to force the defendant to fill in the holes; for if he wants, he can pay him for the damage and the loss"); but the Shakh (95, no. 18) understood these words in their plain sense and ruled: "Where it is possible to repair the damage, it stands to reason that the person who caused the damage is obligated to fix the damage." According to this approach, the argument made in this shiur concerning liability for ripuy is not unique to ripuy. It seems, however, that the ordinary liability for damage translates into financial liability at an earlier stage than liability for ripuy.

[9] It is interesting to note the words of the Or ha-Chayyim on this issue. Regarding the verse, "and he shall cause him to be thoroughly healed" (Shemot 21:19), the Or ha-Chayyim reaches the same understanding as I did, that we are dealing with an obligation to heal, rather than an obligation to pay, as in the case of shevet. However, the only conclusion that he draws from this is this law, that the nichval cannot demand to receive his compensation in money. As I explained earlier, this law does not require a particular understanding of liability for ripuy, but nevertheless, the words of the Or ha-Chayyim imply that this law stems from the understanding that we have proposed regarding liability for ripuy. If, indeed, this is the position of the Or ha-Chayyim, there is significance in the fact that regarding the previous verse he writes: "If he dies because of a blow that ordinarily does not cause death, in which case the person who delivered the blow is exempt from the death penalty, he is liable to pay the victim's heirs – if he did not pay the victim himself during his lifetime - for shevet and ripuy, the entire sum to which the father would have been entitled had he lived." From here we see, contrary to the Kovetz Shiurim, that even if the obligation is to heal and not to pay, the obligation remains in place even if the nichval died before receiving payment. As I explained above, after the obligation is created, there is room to say that we are dealing with an obligation to pay (as what happens, for example, after the money for ripuy was already paid), and therefore it can be inherited, and it is possible that this is the position of the Or ha-Chayyim.

[10] The Ra'avad (ad loc.) explains that we are dealing here with a medical dispute: "The Rabbis maintain that bandaging does not cause damage… and Rabbi Yehuda maintains that a wound many not be bandaged, because the bandage aggravates the wound, because it heats it and causes the skin to peel off and does not allow it to dry." I do not think that this is the simplest and most prevalent understanding of the dispute. Simply understood, it seems that all agree that a bandage can cause damage, and the question is halakhic – is it proper to bandage the wound in order to reduce suffering, despite the damage that the bandage will cause.

[11] My comments are especially relevant according to the position of the Shulchan Arukh (1:2), that in our day liability may be imposed for shevet and ripuy, and they are less relevant according to the Rema, who writes: "I have not seen that in practice [the courts] are particular about this, but rather they compel the person who caused the injury to appease the injured party and penalize him as they see fit." Even according to the Rema, however, it seems that the general estimate conducted by the court should be based, among other things, on halakhic foundations, including the laws of liability for ripuy.

[12] This is independent of the question whether liability for tza’ar relates also to pain that is experienced during the period that is after the injury, and whether liability for boshet relates also to the humiliation of appearing in public with an injured body.

[13] I subsequently saw that a similar comment on the words of the Tzitz Eliezer was made by Rav Meir Friman, Techumin 23 (5763), pp. 268, 271.