Payment for Humiliation (86A-86B) part 1 of 2

  • Rav Shmuel Shimoni

 

            We have at last reached the fifth of the five payments imposed on a chovel (one who causes an injury to another person): boshet (compensation for the humiliation suffered by the injured party). This payment is exceptional among the five payments regarding its source in the Torah. It is not derived from the verses dealing with a person who causes an injury to another person in Parashot Mishpatim and Emor, but rather from the verses in Parashat Kit-Tetze: "When men strive together one with another, and the wife of the one draws near to deliver her husband out of the hand of him that smites him, and putting out her hand, she takes hold of his private parts: then you shall cut off her hand, your eye shall not pity her" (Devarim 25:11-12). It is also exceptional in its very nature: it is the payment that is furthest from the ordinary world of damages and realm of monetary loss. Like the payment for tz’ar (pain), it relates to a non-monetary loss, and according to the Rambam it is considered a kenas (penalty) and not a chiyuv mamon (monetary obligation), though in practice, the Rambam imposes liability for boshet even upon one who admits that he inflicted the injury (but we will not discuss this matter today). It is an injury in the psychological realm, and it is connected to interpersonal relationships. For this reason there is a special requirement of intention regarding humiliation, as we shall see below. We shall deal then today with several topics arising in our passage concerning the payment made for boshet.[1] But let us first turn our attention to the fact that just as in case of physical injury the Torah chose to formulate the law in terms of "an eye for an eye," and thus to teach the lesson that there would be room to impose more than a monetary punishment for intentionally causing an injury to another person, so too a similar lesson is taught regarding an injury to another person's honor: "'Then you shall cut off her hand' – this is monetary compensation."

 

II. If one humiliated another person while he was asleep and then the latter died

 

            The mishna on p. 86b teaches that one who humiliated another person while he was asleep is liable. In the Gemara Rabbi Abba bar Memel raises the question whether liability for boshet is imposed in a case where someone humiliated another person while he was asleep, and the latter died in his sleep, totally unaware that he had suffered humiliation. It is clear that someone who humiliated a dead person, i.e., he degraded the corpse, is not liable for boshet, because there is no injury to a person who could put forward a claim. It is equally clear that there is liability for boshet in a case when someone humiliated another person while he was awake, and the latter subsequently died,[2] and so too in a case when someone humiliated a person while he was asleep, and he then woke up before he died and thus experienced the humiliation that was caused him.[3] The question is whether there can be liability for boshet if the humiliated person never experienced any humiliation. Here the Gemara cites two opinions to clarify the uncertainty. Rav Zevid explains the matter as follows:

Rav Zevid said: This is his question: [Is boshet paid] because of the insult [kisufa], and as in this case he died before waking and was never insulted [no payment should thus be made], or is it perhaps on account of the disgrace [ziluta], and as there was here disgrace [payment should be made to the heirs]?

 

            What is the question according to Rav Zevid? The new focus, of course, is not kisufa, but ziluta. How can we impose liability for boshet, if there was no humiliation? It seems to me that the simple explanation arising from Rav Zevid's words is that liability for boshet does not necessarily relate to the sense of humiliation, but to the degradation of the social standing of the humiliated person. Even if the humiliated person did not experience any suffering, his welfare suffered, because one of the best things that a person has is his good name and his social standing, and this was taken from him. Had he been humiliated after his death, as someone who is not alive, he would no longer have any assets that can suffer damage (even though conceptually a person's good name is an everlasting asset). But since he was alive, there was an injury. This seems novel to us, because we are accustomed to relate to insult through the prism of a person's feelings, but this is not the exclusive prism.[4]

            It is interesting to note in this context a Baraita discussed later in our chapter on p. 92a. The mishna there states regarding the payments made by a chovel that "even though the offender pays him [compensation], the offence is not forgiven until he asks him for pardon." In a Baraita in the Gemara this is said about the payment made for boshet: "All these fixed sums stated above specify only the payment [due] for boshet. But regarding the hurt done to the feelings of the plaintiff, even if the offender should bring all the rams of Nevayot in the world, the offence would not be forgiven until he asks him for pardon." The Baraita distinguishes between the obligation to make compensation for boshet, which covers the injured party's "humiliation," and asking for pardon, which is needed because of his "hurt." What is "humiliation" and what is "hurt?" Rashi there explains: "But regarding the hurt – that he is worried about his humiliation, the offence is not forgiven."[5] This implies that the money paid for humiliation does not compensate the injured party for the distress caused him by the humiliation, and that nothing can fix the matter except for asking for forgiveness. The requirement that the offender ask for forgiveness is not the subject of this shiur, but we can learn from here about the nature of the humiliation that obligates compensation – it is not the distress, but the objective demeaning of the status of the humiliated party.

 

According to our analysis of the passage dealing with one who humiliated another person while he was asleep and then the latter died, and according to Rashi's explanation of the Gemara on p. 92a, it turns out that the passage there clearly decides the matter that humiliation is paid because of the ziluta. The matter requires further study.

 

            Our Rosh Yeshiva, Rav Mosheh Lichtenstein, proposed a different understanding of the term "ziluta." He suggests that the term does not refer to an injury to the specific person before us, who does not experience any humiliation whatsoever. Rather, the term "ziluta" refers to an injury to the ideal Man who was created in the image of God and enjoys inherent dignity and standing. As in other cases, so too here the Torah awards the right to compensation to the person against whom the injury was committed, but the truth of the matter is that this is not compensation for the fact that his well-being was impaired, but rather for the insult to the unique dignity of Man.

 

            A third formulation – different in my opinion – is found in the Ra'avad's explanation of the question:

 

[Is boshet paid] because of the kisufa – when he wakes up and learns of the humiliation that he suffered, his face turns white; or is it perhaps on account of the ziluta, for he treated the other person lightly… Conclude from this that it is on account of the ziluta, for even though he is a minor, a person is not permitted to treat a member of the covenant lightly. For if it is because of the insult, a minor's face does not turn white, for he doesn't feel any of this.

 

            The problematic aspect of ziluta according to the Ra'avad is not the diminishment in value of the humiliated person, and also not the insult to Man in general. The Ra'avad maintains that with "disgrace," a shift is made from the humiliated person to the person who humiliated him. The humiliated person may not feel humiliation, but the person who humiliated him treated the other person lightly, and for this he must be punished,[6] "for he treated the other person lightly" and "a person is not permitted to treat a member of the covenant lightly." Similarly, see the Rambam's explanation of the Torah's prohibition "You shall not curse the deaf" (Vayikra 19:14):

 

It might have entered our minds that the essence of what is forbidden to us with respect to cursing a member of Israel is when that person hears it, owing to the pain and distress that he suffers because of it. But as for cursing a deaf person, since he does not hear it or suffer pain because of it, this should not be a sin. Therefore the Torah informs us that this is forbidden and admonishes us about it. For the Torah is concerned not only about the person being cursed, but also about the person pronouncing the curse, and it admonishes that one should not drive his soul to revenge and not accustom it to anger. (Sefer ha-Mitzvot, negative commandment 317)

 

            The Rambam explains that the prohibition against cursing relates not only to the injury inflicted upon the person being cursed, but also to the injury inflicted upon the soul of the person pronouncing the curse. As I understand it, the Ra'avad adopts a similar position regarding boshet, and understands that for this the Torah imposed a chiyuv mamon in the framework of compensation paid for boshet.[7]

 

            Thus far we have dealt with Rav Zevid's explanation of Rabbi Abba bar Memel's question regarding one who humiliated another person while he was asleep and then the latter died. Rav Pappa refused to accept this explanation, presumably because he found it difficult to impose liability for boshet in a case where there is no experience of humiliation, despite the three understandings of the liability based on disgrace. Hence he proposed the following explanation:

 

[Is boshet paid] because of personal kisufa, and as in this case [where] he died [before waking he did not suffer any personal insult, no payment should be made], or is [boshet paid] perhaps on account of the kisufa suffered by the family?

 

            That is to say, the payment is certainly made for kisufa, and the question is whether liability is imposed only for the insult suffered by the person who was humiliated, or also for the insult suffered by his family. On the face of it, using the terminology that we suggested in the first explanation of kisufa, Rav Pappa abandons the possibility of imposing liability based merely on objective injury, and focuses on the experienced injury. This is true, however, only at first glance. A question may be raised regarding the insult suffered by the family – who is the injured party that is entitled to compensation? Do we say that it is the family of the person who had been humiliated? It is obviously the humiliated person himself who is entitled to the compensation, and in practice the payment will be collected by those who are defined as his heirs according to the laws of inheritance, and not specifically his family that was humiliated.[8] They will sue for the payment as heirs, and not as direct victims. This proves then that it is the person who was humiliated while asleep and then later died who is entitled to the compensation, and so we have not rejected the idea of an objective component. Rav Pappa does not want to rely on the ziluta itself, but rather on a different component on the objective list that defines a person's well-being, i.e., the well-being of his family and friends. If my family is suffering, things are bad for me and my well-being is impaired. In this framework of family suffering, we are dealing at this point exclusively with subjective suffering – insult, but with respect to the plaintiff in the case, we are dealing with an objective component.

 

            In the framework of these two alternative understandings, the Gemara says that it is more difficult to understand the possibility of imposing liability in the case of a minor who was humiliated if the liability is based on kisufa of the humiliated party, and we must explain the case as dealing with a minor who "when he is shamed feels embarrassed." Rashi understands that we are dealing with a case where the minor feels embarrassed when the humiliation is mentioned to him. It is not clear why he needs this; according to the simple understanding we are dealing with the quite common case of a minor who is capable of experiencing humiliation. In the continuation, the Gemara cites a Baraita that distinguishes between different situations with respect to imposing liability for the humiliation of a minor. The Gemara explains that indeed liability can only be imposed in a case "when he is shamed, he feels embarrassed." From this the Tosafot conclude (s.v. biysho) that according to the Halakha the payment is made because of the personal kisufa, and therefore one who humiliated a person who was asleep and subsequently died is exempt. On the other hand, the Tosafot themselves note that the Gemara in Sanhedrin 85a, according to our reading, states in the name of Rav Sheshet that one who humiliated a person who was asleep and then the latter died is liable. And we noted earlier that this is also the conclusion that may be drawn from the passage on p. 92a according to Rashi. The Rambam, in any event, left the matter as an unresolved question:[9]

 

When one humiliates another person who was asleep, he is liable [to compensate him] for the humiliation he caused him. If the person died in his sleep and never became aware that this person had humiliated him, the assessment for boshet is not expropriated from the person who caused the humiliation. If, however, the humiliated person's heirs seized this amount from the property of the person who caused the humiliation, it is not expropriated from their hands (Rambam, Hilkhot Chovel u-Mazik 3:3).

 

            On the other hand, the Rambam in halakha 4 rules that one who humiliated a minor is only liable if "when he is shamed, he feels embarrassed." The Lechem Mishneh asks that from here it seems that even the Rambam ruled that the liability for boshet is because of the personal kisufa. The Lechem Mishneh answers, and so too it stands to reason, that the condition that the minor must be capable of experiencing embarrassment is applicable whether the liability is because of the kisufa, or because of the ziluta, or because of the humiliation of the family. If the minor is not capable of experiencing humiliation then there is no boshet. All that the Gemara said is that were we to base the liability on disgrace or the humiliation of the family, it would be easier to understand the liability for boshet in the case of a minor, and we would not have had to limit the ruling to a particular case, but that limitation of the ruling is reasonable even according to those understandings.

 

            My colleague, Dr. Itamar Nitzan, supported this understanding of the Rambam from another ruling of the Rambam (Hilkhot Sanhedrin 26:1) regarding a matter that was mentioned above, the prohibition to curse another Jew:

 

Anyone who curses any other Jew receives lashes, as it is stated (Vayikra 19:14): "You shall not curse a deaf person." Why does the verse mention a deaf person? To teach you that even when a person who cannot hear and thus will not be distressed by being cursed, the person pronouncing the curse is lashed. It appears to me that a person who curses a child who experiences embarrassment receives lashes.

 

            The prohibition against cursing is certainly not connected to the feeling of hurt on the part of the person who was cursed, for this is precisely what the Torah commands that one must not curse a deaf person, as the Rambam emphasizes in the cited passage. Nevertheless, the Rambam writes that one who curses a minor is only liable to lashes if the minor is capable of experiencing embarrassment. That is to say, the curse in itself has no meaning – even on the part of the person who pronounces it – in the case of a minor who is incapable of experiencing embarrassment.

 

II. Assessing the boshet

 

            The basic principle underlying the assessment of boshet is not clarified in the mishna or in the Gemara, but it is implicit in the words of Rashi (86a, s.v. shaiminan behu). Rashi explains that the principle is similar to that which we clarified at length in the shiur about liability for tz'ar – in exchange for what sum would the injured party freely agree to suffer the injury that he suffered against his will, and in this case, the embarrassment. This is the starting point. From this point on, the discussion revolves around the precise intensity of the humiliation, this being influenced by the nature and circumstances of the humiliating action, on the one hand, and the identity of the person who caused the humiliation and of the person who suffered the humiliation, on the other.

 

            As for the identity of the parties, the mishna says that "all is to be estimated in accordance with the person who caused the humiliation and the person who suffered the humiliation." Regarding the person who caused the humiliation, Rashi explains that "a lowly person who caused humiliation, the humiliation he causes is great." Rashi's words here seem to contradict what he says in Ketubot (40a, s.v. ha-kol): "An average person who caused humiliation, his humiliation is greater than that of a lowly person or an important person." The matter requires further study. See also the Shita Mekubetzet (ad loc.) in the name of Likutei Ge'onim: "If he was an important person, he pays him a large sum for the boshet, for whenever an important person humiliates another person, the humiliation is great." As for the person who suffered the humiliation, in any event, it seems that Rashi's understanding in the mishna is accepted by all: "An important person who was humiliated, his humiliation is great."

 

            The Gemara on p. 86a expands the picture, bringing three opinions among the Tannaim. The viewpoint of Rabbi Yehuda is straightforward, and it accords with the initial impression left by the Mishna: "[Boshet in the case of] an eminent man [will be assessed] in accordance with his eminence, [whereas in the case of] an insignificant man [it will be assessed] in accordance with his insignificance." According to the Gemara's conclusion, our mishna does not follow this position, but rather that of Rabbi Shimon, who proposes a more lenient assessment: "The wealthy are seen as if they were freemen who have become impoverished, whereas the poor are put on the level of the least among them." Perhaps this is based on the desire not to cause the offender undue suffering.

 

            According to Rabbi Meir (and this is also the viewpoint of Rabbi Akiva in the Mishna on p. 90b), no distinction is made in accordance with the party's socio-economic status, for "all [sorts of injured persons] are seen as if they were freemen who have become impoverished since they are all the children of Avraham, Yitzchak and Yaakov."[10] The continuation of the Gemara (86a, at the bottom) clarifies that even according to Rabbi Meir there is a difference between a situation in which the humiliated person is a minor, and so his humiliation is relatively little (where the minor is capable of experiencing humiliation), and the situation in which the humiliated person is an adult, and so his humiliation is great, and Rabbi Meir's egalitarian novelty was stated only with respect to the socio-economic scale. This position requires further examination, as it is not clear how it deals with the psychological assumption that underlies the other viewpoints, that socio-economic status impacts on the intensity of the humiliation. It is very clear from Rabbi Meir's own words that he recognized the relevance of this status, for the uniform level that he established follows from a very particular socio-economic status – "freemen who have become impoverished."

 

            The Tosafot (s.v. ke'ilu) were apparently disturbed by this question, but their answer is not satisfying. According to them, the explanation is that "there are wealthy people who do not suffer humiliation more than freemen who have become impoverished, and so too poor people, and we cannot precisely determine who among them suffers humiliation as if he became impoverished, and who suffers humiliation more or less." According to them, every sweeping determination regarding the intensity of humiliation in accordance with socio-economic status has its exceptions, and there is a technical difficulty with assessing the correct sum for the case, and therefore a uniform level was established. It is difficult to understand how this explanation fits in with the powerful words of Rabbi Meir and Rabbi Akiva: "Since they are all the children of Avraham, Yitzchak and Yaakov." In addition, it is difficult to understand why a uniform level was not established for both minors and adults, for presumably there too there are exceptions.

 

            It may be possible to propose a different explanation for Rabbi Meir's viewpoint that is egalitarian specifically in the socio-economic context. It would seem that this position does not see the payment for boshet as being focused exclusively on the assessment, quantification and payment of compensation for the insult that occurred. This payment has moral significance, and it is meant to send a message about the severity of insulting the dignity of a fellow Jew. Rabbi Meir and Rabbi Akiva maintain that taking into consideration the socio-economic status of the person who caused the humiliation or the person who suffered the humiliation would impair the moral message that the laws of boshet are meant to send regarding the unique dignity of a Jew, which is not measured in accordance with his income, wealth or social standing. There is no sweeping disregard of reality, for the humiliating act is examined in accordance with its nature and circumstances, and it should also not be forgotten that there is a difference between minors and adults, but the importance of the offender and the victim is examined exclusively in light of the fact that they are the children of Avraham, Yitzchak and Yaakov. As for the specific level chosen by Rabbi Meir, "freemen who became impoverished," it stands to reason that this level reflects the way in which he sees the "normal" Jew in the context under discussion – a dignified and valuable person, even after he has lost all his material possessions.

 

III. Intention regarding boshet

 

            The mishna on p. 86b states:

 

If one fell [upon a human being] from a roof, and caused damage and also caused humiliation, he is liable for the damage, but exempt from the boshet, unless he intended [to inflict it].

 

            The Gemara at the end of the second chapter of our tractate clarifies that the level of guilt that is necessary for liability for the five payments made by a chovel divides into three categories. Regarding nezek, we follow the general rule governing damage, that a person is always treated as a mu'ad, that is to say, that he is always liable for the damage that he causes, even if he causes the damage inadvertently, and even if he causes it as a result of ones (circumstances beyond his control).[11] In contrast, regarding shevet (loss of livelihood), ripuy (healing) and tz'ar, there is no liability in a case where one causes an injury inadvertently, but there is liability in a case of negligence that is close to intentional injury. Liability for boshet is exceptional in that there is a special requirement of intention. Nevertheless, the Gemara qualifies this requirement to a certain degree:

 

And Rabba said: If one fell [upon a human being] from a roof through a wind of unusual occurrence, and he did damage and also caused humiliation, he is liable for the damage, but exempt from the [additional] four payments. [If he fell] through a wind of usual occurrence and he did damage and also caused humiliation, he is liable for four payments, but exempt from boshet. If he turned over [while falling], he is liable even for boshet. As it was taught: From the implication of the statement, "And she puts out her hand," would I not have understood that she takes hold of him? Why then say: "And she takes hold of him?" To inform you that since there existed an intention to injure, though none to cause humiliation, [there is liability even for boshet]. (27a)

 

What is the case when there was intention to injure but no intention to cause humiliation, and nevertheless there is liability for boshet? Rashi there explains that we are dealing with a person who turned over in the air in order to fall on a person for his own benefit, that is to say, in order to soften his fall. However, from the words of the Ra'avad in his novellae, ad loc., it would appear that intention to cause injury is in fact necessary (though it is not clear how what he says fits in with the example brought in the Gemara). So too the Maharshal (Yam shel Shelomo, no. 39) does not hesitate to propose an approach different from that of Rashi:

 

Nevertheless, it is Torah, and I am obligated to learn it. For the wording of the Gemara does not imply this. For it says: "Since he intended to cause an injury, etc." And this person did not intend to cause an injury, but only for his own benefit. And he is not pleased by the fact that the other person suffered an injury. Even though he is liable for all four payments, because he shouldn't have saved himself even with the other person's property, and surely not with his body, the law of boshet should not apply to him. And furthermore, what is the reason that he is liable for the four payments in a case of inadvertent injury that is close to intentional injury, but not for boshet, even though all five payments are similar to each other? Because when he did not intend to humiliate him, it is not humiliation for him, for everyone knows that he did not do it to disgrace him. But when he intends to cause him the injury, he does it to hurt him, and he is governed by the law of boshet. If so, in our case, when he turns over for his own benefit there should be no law of boshet, as he did not do it to disgrace him.

 

            The Maharshal proposes that even though there is no requirement of intention to cause humiliation, there is a requirement of intention to hurt the person who suffered humiliation, as only an action that is intended to hurt is considered an act of humiliation. Humiliation is not an objective insult detached from its context, but rather an insult involving an interpersonal encounter of assault and violence. According to the Maharshal, intention to cause humiliation is not a level of guilt that is required in order to impose liability, but rather a condition for defining the action as an act of humiliation.

 

            A sharp expression of an approach different from that of the Maharshal, that is, an approach that sees intent to cause humiliation as an external condition for the level of guilt that is required for liability, may be found in the words of the Tosafot on p. 53b, s.v. shor. The Gemara there says that one who pushed another person into a pit is liable for all five payments imposed on one who causes an injury to another person, and the Tosafot understood – for a reason that is not our present concern – that we are dealing here with a person who pushed the other person into the pit unintentionally. How then, ask the Tosafot, is he liable for boshet? They offer a very novel answer: "For example, where the person knew at the time of the other person's falling, and this is considered intentional." See also the words of R. Yeshaya in the Shita Mekubetzet, ad loc.: "Before the faller fell into the pit, the pusher understood, and it was pleasing to him that he should fall." That is to say, while at the time of the action, the pushing was not intentional, the fact that the pusher was aware at the time of the falling, and it pleased him that the faller should fall, this suffices to satisfy the requirement of intent for boshet. This proves that intention does not define the action in a different manner, but rather it constitutes an external condition for liability. See Yam shel Shelomo, who was quick to object to the words of the Tosafot: "If he never had such intention, of what help is his awareness?" (and so it is cited in Shita Mekubetzet in the name of Rabbi E. of Germisa).

 

IV. Where he intended to humiliate one person and He humiliated someone else

 

            The Gemara on p. 86 records the following Baraita:

 

If he intended to insult a minor, but insulted [by accident] an adult - he pays the adult the amount due for the boshet of the minor. So also where he intended to humiliate a slave but [by accident] humiliated a freeman, he pays the freeman the amount due for the boshet of the slave.

 

            The Baraita contains a point, one that seems novel to me, which the Gemara does see as being subject to a dispute. On the assumption that the intention in these cases suffices to impose liability, the adult is entitled only to the amount due for the humiliation of a minor. At first glance, it would seem that if there is sufficient intention here, the adult should be entitled to compensation for the full amount of his damage, i.e., the amount due for the humiliation of an adult. We are forced to say one of two things: either that the requirement of intention for humiliation relates to the results of the humiliation, and the intention to cause minor humiliation does not suffice to impose liability for great humiliation, though it is possible to split up great humiliation, and impose liability upon the offender for the minor humiliation. Alternatively, the humiliation of a minor is not only different from that of an adult in its result, that is, that greater humiliation was caused, but also in the act of humiliation: The act of humiliation is greater in the case of an adult, and in this case the person who caused the humiliation only had intention for an act of humiliation of a minor, and what is new here is that even an act of humiliation of a minor has significance regarding an adult, and compensation can be collected for it.

 

            [The ruling regarding a slave is even more novel than the ruling regarding a minor, in two ways: first, as the Gemara emphasizes, at least if we wish to set this up according to Rabbi Yehuda, it turns out that even though slaves are removed from entitlement to compensation for boshet, the phenomenon of humiliation exists even in their regard and it can be evaluated. This is in contrast to minors, who are not removed from humiliation, but rather the level of their humiliation is lower. It stands to reason that even a minor who has not reached the level that "when he is shamed, he feels embarrassed," is not fundamentally removed from humiliation, only that the level of his humiliation is zero. Second, the case of one who intended to humiliate a slave but ended up humiliating a freeman is not similar to that of a person who intended to kill an animal but ended up killing a human being, and not even to that of a person who intended to kill a non-Jew and ended up killing a Jew (see Tosafot, s.v. aval; Or Same'ach, Hilkhto Chovel u-Mazik 1:14). It stands to reason that there the intention was for an action that does not carry the death penalty, but here the intention was for a humiliating act of the sort that generates liability for boshet, only that in practice had it been realized as planned it would not have led to liability because slaves are excluded from boshet.]

 

            The Gemara asserts that the Baraita in question contradicts the position of Rabbi Shimon:

 

If it is in accordance with Rabbi Shimon, surely he said that if the offender intended to humiliate one person and by an accident he humiliated another person, he is exempt. What is the reason? It is like murder; just as in the case of murder there is no liability unless there was intention for the particular person killed, as it is written: "And lie in wait for him and rise up against him," [implying, according to Rabbi Shimon, that there would be no liability] unless he aimed at him particularly, so should it also be in the case of boshet, that no liability should be imposed on the offender unless he aimed at the person humiliated, as it is written: "And she puts out her hand and takes hold of his private parts" [which might similarly imply that there should be no liability] unless the offence was directed at the person humiliated.

 

            Rabbi Shimon and the Sages are parties to an important and fascinating disagreement regarding the laws of murder with respect to the one who intended to kill one person but by accident killed another person. This, however, is not our concern today. We are interested in their disagreement regarding boshet. Rashi explains that Rabbi Shimon stated his position only with respect to murder, and it is the Gemara that concluded that the same applies to boshet:

 

Since Rabbi Shimon taught us [his position] regarding murder… that if one intended to kill one person, and [by accident] he killed another person, he is exempt, here too it is not different, for the reason there is because of "and lie in wait for him," and here too it is written "in his private parts."

 

            The assumption is that murder and boshet are two realms in which intention to harm is a requirement for liability. The verses teach that the intention must be directed at the victim, and therefore the same question arises in both realms whether intention to harm Reuven when in the end he harms Shimon satisfies this requirement.

 

            The Rambam, however, implies otherwise. The Rambam rules in Hilkhot Rotze'ach (4:1) that if one intended to kill one person, and by accident he killed another person, he is exempt, whereas regarding boshet he rules that if he intended to humiliate one person and by accident he humiliated another person he is liable (Hilkhot Chovel u-Mazik 1:14, and see Lechem Mishneh and Or Same'ach, ad loc.). The Rambam appears to have understood that Rabbi Shimon and the Sages disagreed about two different points, one regarding murder and one regarding boshet, and the Gemara merely compared one disagreement to the other. Therefore the Rambam can split his ruling and exempt in the case of murder while imposing liability in the case of humiliation.

 

Why is this so? It may be suggested that the Rambam understood that regarding murder, intention is required as an indication of his premeditation, which is a condition for punishment. If the murderer did not intend to kill the particular person that he killed, this requirement of full premeditation is not fulfilled. Regarding boshet, it may be proposed that the Rambam adopted the position of the Maharshal, that intention is not an indication of the premeditation that is necessary in order to impose liability, but rather it defines the action as an act of boshet. Accordingly, the Rambam rules that when a person intends to humiliate a particular person, his action is defined as an act of boshet, and there is no longer anything to prevent imposing liability for it.

 

(Translated by David Strauss)

 

Sources for the next Shiur Shiur 19

 

A blind person

 

            Next week we will continue in the Gemara until the mishna on p. 87a, and we will deal with the viewpoint of Rabbi Yehuda concerning a blind person with respect to boshet and the commandments. Think about the rationale underlying Rabbi Yehuda's position. See the words of the Ra'avad (below), decide what is new about his opinion, and consider whether it is possible to accept everything that he says in its plain sense.

 

            Regarding boshet, see also Tosafot, 86b, s.v. suma; s.v. ma; 87a, s.v. ve-chen (I).

 

            Regarding a blind person's obligation to fulfill the commandments, it is important to see Tosafot 87a, s.v. ve-chen (II); Rashba (below).

 

Chiddushei ha-Ra'avad 86b:

 

Just as below a blind person is exempt, as he lacks intelligence, so too here a blind person is exempt, and is not at all subject to the law of humiliation, not to pay and not to receive payment… And so too he is exempted from all judgments in the Torah; he does not judge, nor is he judged, nor is a court obligated to attend to his judgment.

 

Chiddushei ha-Rashba 87a:

 

So also did Rabbi Yehuda exempt him from all commandments stated in the Torah. We must understand, for we learned in Megilla in chapter Ha-Kore et ha-megilla: "Rabbi Yehuda says: One who has never seen the light from his birth may not recite the blessings before the Shema." And if it is true that a blind person is exempt from all the commandments what is the difference whether he never saw a light or he saw and then became blind. The Yerushalmi asks in Megilla and in Makkot in chapter Elu hen ha-golin, and it answers: One who is sitting in a dark house may not recite the blessings before the Shema. This means, one who is sitting in a dark house from the time he was born, e.g., where he was born in a cave and never saw light and never derived benefit from it. However, this is not the implication of our Gemara. Know that this is true, for there in Megilla Rabbi Yehuda's reason is explained that he doesn't derive benefit from the light. And the Rabbis said that he agrees with Rabbi Yosi, for Rabbi Yosi said: I was once walking on a pitch black night when I saw a blind man walking in the road with a torch in his hand. I said to him, my son, why do you carry this torch? He replied: As long as I have this torch in my hand, people see me and save me from the holes and the thorns and briars. And this is not relevant to a person who was born in a cave and sees but does not derive benefit as long as he is sitting in the dark. The Tosafot answer that even though Rabbi Yehuda exempts a blind person from all the commandments by Torah law, by rabbinic law he is obligated in all the commandments, for if not so you have made him into a non-Jew. Therefore, someone who saw light and derived benefit from it, even though he became blind, is obligated by rabbinic law and he says the blessings before the Shema to cause others to fulfill their obligation, for the reading of Shema is by rabbinic law, and one who is obligated by rabbinic law can cause another person who is obligated by rabbinic law to fulfill his obligation. But someone who never saw light, even though he is obligated in all the commandments by rabbinic law, here where it is because of the benefit derived from the light, and this person never derived any benefit, he is exempt even by rabbinic law, and therefore he may not recite the blessings before the Shema. But there is still a slight difficulty, for if according to Rabbi Yehuda a blind person is obligated in the commandments by rabbinic law, what did Rav Yosef mean when he said: Thought I am not commanded, I performed the commandments. But surely he performed them and is commanded by rabbinic law and he is liable for "And you shall not turn aside." Rather it seems that according to Rabbi Yehuda he is entirely exempt from all the commandments, even by rabbinic law, and it is only as an act of piety that he is obligated, and this is Rav Yosef. And reciting the blessings before the Shema, since it is only by rabbinic law, even a blind person who saw light and later became blind, and he comes to say the blessing of Yotzer Or is permitted to do so, and he is pious, since he already derived benefit from the light. And he can even cause others to fulfill their obligation. But someone who never saw light, even if he comes to recite it, there is no act of piety here, since he never experienced the light and never derived benefit. And if it is not even an act of piety, how can he recite the blessings before the Shema to cause others who derived benefit to fulfill their obligation. Rabbi Yehuda treated it like an ordinary blessing of enjoyment. And the Sages maintain that he too derives pleasure, like the words of Rabbi Yose. So it seems to me.

 


[1] It should be noted that the issue of boshet comes up again later in the chapter (p. 90a and on, and this shiur should not be seen as exhausting the topic.

[2] As I noted in the previous shiur, this seems to contradict the words of the Ra'avad, p. 86b, regarding a serial injurer.

[3] See Tosafot Yom Tov, that "if he didn't experience any humiliation after waking up, i.e., where the humiliating factor was removed before he woke up, this is included in the Gemara's question."

[4] From a philosophical perspective we are dealing with a major disagreement among thinkers in the field of normative ethics, who dealt with the issue of how we define human well-being. The various positions can be divided into several main camps, two of which are important for our purposes. One camp is called the hedonistic camp, according to which man's well-being – whether things are going well for him, and how well they are going – is measured exclusively in accordance with his subjective feelings: When I experience pleasure, things are good, and when I experience distress and suffering, they are bad. Theoretically, were it possible to connect a person's head to electrodes that would supply his brain with wonderful experiences and feelings of satisfaction and pleasure for his entire life, and he would not have a feeling of emptiness because the machine would send the messeage to his brain that these things are really happening, we could say that this person's well-being is much greater than that of most people living in the real world. Receiving money, for example, does not in itself contribute to a person's well-being, but only the pleasures that he could enjoy through the money, and the feelings of joy and stability caused by the very fact that he received the money. The expression, "what you don't know can't hurt you," is very apt according to this approach – if, for example, a person never finds out that that everyone else scorns him and he lives his life with this pleasant feeling that stems from baseless confidence – his well-being does not suffer in any way from the scorn (only that of course this is not realistic – the negative feelings will get back to him in one way or another).

I once read a shocking article about the abuse of retarded children on the part of the counselors in their institution. The abuse was carried out amid the smiles of the children, who were not at all aware that they were being abused and humiliated. Extreme adherence to the aforementioned approach might lead one to the conclusion that if indeed this was the situation, it would be correct to say that the well-being of these children was in no way impaired.

In contrast, another camp follows the objective list theory. According to this approach, there is an objective list of criteria that define a person's well-being. Of course there might be polar disagreement about the content of such a list, but this does not spread a cloud over its objectivity. It is certainly reasonable to say that a person's good feelings are an important component of his well-being, and therefore they comprise one of the items on the objective list, but they should not be given exclusivity. When, for example, a person's dignigy is impaired, on the assumption that a person's diginity is one of the items on the objective list, then even if he lacks any awareness and he suffers no decrease in his enjoyment of life, his well-being has nevertheless been impaired. He has less well-being. The hedonistic camp is unable to comprehend this. How can a person's well-being be impaired if he does not suffer. The objective camp, on the other hand, cannot understand the criteria should be limited to subjective suffering.

According to the explanation proposed above to the passage dealing with kisufa and ziluta, the question is to which injury does liability for boshet relate: the feeling of insult, or the objective degradation in his social standing. The second possibility assumes the objective approach to well-being and the inclusion of the human dignity in the objective list. The first possibility may deny this, or else it maintains that in any event liability for boshet relates to the feeling of humiliation.

 

 

[5] The Ra'avad offers a different explanation in his novellae, ad loc., according to which the money paid for the humiliation covers all the insults, but it doesn't atone for the fact that the one person intentionally hurt the other person, and for this asking for forgiveness is necessary (see below). See also the words of the Gaon in the Shita Mekubetzet, who explains that the reference here is to the tz'ar that is one of the five payments cast upon a chovel. It may be presumed that regarding all the other damage done to him, the injured party is appeased by the payments that he receives. But this is not true about the payment made for tz'ar, "because a person does not forgive physical pain in exchange for money."

[6] While it is true that according to the Ra'avad in his strictures to the Rambam (Hilkhot Chovel u-Mazik 5:6), the payment for boshet, like all the payments imposed on a chovel, is regarded as a chiyuv mamon, and not a kenas, it stands to reason that he maintains that liability for boshet has a strong foundation of punishment, but nevertheless, since the Torah imposed this liability, and the compensation is supposed to correspond to the value of the injury, we are dealing with a chiyuv mamon.

[7] The difficulty with the passage on p. 92a that was mentioned above applies also according to the viewpoint of the Ra'avad. As I wrote earlier in note 5, the Ra'avad explains the passage there in his own way, arguing that the compensation paid for boshet covers all the injuries, but does not atone for the fact that the one person intentionally hurt the other person, and for this asking for forgiveness is necessary. If we combine this with what he says here, it turns out that the passag there maintains that the offender's intention to cause injury is not part of the payment for boshet, as opposed to the possibility of ziluta here. If so, according to Rashi, the passage there supports the idea of ziluta, whereas according to the Ra'avad it supports the idea of kisufa.

[8] For example, the humiliated person's mother is part of his family who is liable to experience shame, but she does not inherit him according to Torah law.

[9] There is a third opinion about how the law was decided, according to which one who humiliated another person who was asleep, and then the latter died, is liable, in accordance with the passage in Sanhedrin. See Yam shel Shelomo, here, no. 18. The Noda Bi-Yehuda (2nd edition, Yoreh De'a, no. 53) already wrote about the Maharshal, author of the Yam shel Shelomo: "I am astonished by him… we even find that the Maharshal disagreed with the greatest Rishonim, as his heart is like the heart of a lion."

[10] The Meiri proposes an exceptional understanding of the position of Rabbi Meir. According to him, the words, "since they are all the children of Avraham, Yitzchak and Yaakov," refer to the person who caused the injury, rather than to the person who suffered the injury. What this means is that excessive sums should not be imposed as compensation for boshet even if the person who suffered the humiliation is an eminent person, because the person who caused the humiliation is also one of the children of Avraham, Yitzchak and Yaakov. We do not want to cause undue suffering to someone who is counted among the children of Avraham, Yitzchak and Yaakov, and we see the humiliation that was caused with limited intensity, at least when it stems from a difference in standing between the person who caused the humiliation and the person who suffered the humiliation. You cannot claim that you were humiliated by an insignificant person, for the offender is included among the children of Avraham, Yitzchak and Yaakov. As we said, however, this is an exceptional explanation.

 

[11] We will not relate here to the disagreement among the Rishonim whether or not there is liability in all cases of compelling circumstances.