Payment for Loss of Livelihood and its relationship to payment for depreciation resulting from injury (I) (85b)

  • Rav Shmuel Shimoni

 

            In this and the next shiur we will concentrate upon several passages on pp. 85b-86a that focus on liability for shevet (loss of livelihood). We will consider this liability as well as other liabilities, especially the liability for the nezek (depreciation resulting from the injury), the payment that is most closely connected to shevet, as we will see below.

 

I. When the offender wrongfully Locked a person up in a room

 

But how could such a case be found when no nezek was caused? ... shevet [without nezek could occur] when the offender [wrongfully] locked him up in a room (hadkei be-indrona) and thus kept him idle. (85b)

 

            This passage seems to be teaching us that when a person locks another person in a room, thus keeping him idle from work, this is treated as an act of injury, which creates liability for shevet. We see from here that the definition of injury with respect to shevet does not necessarily include violation of the prohibition of "Forty stripes he may give him, and not exceed" (Devarim 25:3), which presumably is not transgressed when one locks a person in a room (just as one becomes liable for boshet (humiliation) if he spits in another person's face, even though such an action does not appear to be included in that prohibition). In any event, we seem to be dealing here with an application of the Scriptural decree of "Only he shall pay for the loss of his time" (Shemot 21:19), which is unique to a chovel be-meizid (a person who intentionally inflicts an injury upon another person), owing to the special severity of the event. In other circumstances, e.g., where a person unintentionally locks a person in a room, or where he locks up another person's animal, there is no financial liability, since we are dealing with indirect damage (gerama).[1]

 

            This understanding, however, is not universally accepted by the Rishonim. One of the contexts in which this issue arises is the dispute among the Rishonim in the second chapter of our tractate regarding a case in which a person lives in another person's courtyard without his permission, thus causing him a loss because the courtyard was meant to be rented out in exchange for payment, but the person living there did not gain in any way because he had never intended to rent a room. There are three views on the matter as discussed by the Nimukei Yosef (8b in Alfasi, s.v. ve-chatzer):

 

The Ba'alei ha-Tosafot, z"l, write that it is obvious that he is exempt, as he is like one who causes another person's property to be idle, or like one who locks another person in a room, who are exempt.

But the Re'a, z"l, writes that all the Geonim, z"l, agree that he is liable, this also being the position of his teacher. It is not the same as the case of one who causes another person's property to be idle, or that of one who locks another person in his room, for there it is merely gerama. Here however where he lives there and enjoys its fruit, he is certainly liable. The proof is that when a person eats another person's fruit, he is liable even if he derives no benefit. If, however, he did not live there, but rather he locked it up for the entire year, he is exempt….

So writes the Rama, z"l, that when he lives there he is liable, as in all cases of damage in which one person suffers a loss and the other person derives no benefit. Only that he disagrees and says that in a case of shevet in which there is no nezek, e.g., in a case of hadkei be-indrona, he is liable, as is stated in chap. Ha-Chovel.

 

            The Tosafot and the Re'a disagree about the law in this case. According to the Tosafot, a person who lives in another person's courtyard without permission is exempt from liability, because this is indirect damage, whereas according to the Re'a, he is liable, because he did not merely cause damage (which is indirect damage), but rather he enjoyed the profits and advantages of the other person's property. However, both the Tosafot and the Re'a agree that if one merely locked up another person's courtyard and prevented him from renting it out, he is exempt, because this is gerama. One of their proofs is what appears to be a citation from our passage: the exemption in the case of hadkei be-indrona. This proof is surprising, for it would appear that it is explicitly stated in our passage that in a case of hadkei be-indrona he is liable. The Rama, whose position is cited immediately afterwards, is quick to voice this critique. It is possible that the Tosafot and the Re'a had a different version of our passage, but it is also possible that they understood our version in a different manner. That is to say, they may have understood that the Gemara merely proposed a case in which there is shevet without nezek, but it never meant to imply that the law is that the offender is liable in such a case. If so, in their view, even when the Scriptural decree of "Only he shall pay for the loss of his time" applies, there is no liability for unlawfully imprisoning a person in a room. Alternatively, it is possible (though this would have to be forced into their words) that they mean to say that there is indeed liability in the case of hadkei be-indrona, but this is only in a situation that this unique Scriptural decree applies. But the general rule that one may learn from here is that in other cases of damage there is no such liability.

 

            The Rama, in any event, adopts the simple understanding of our passage that in a case of hadkei be-indrona one is liable, and he does not hesitate to extend the law to other situations of damage. In his view, one who prevents another person from renting out his courtyard is liable even when he does not live there. The implication is that in his view this is not a Scriptural decree unique to the case of chovel be-meizid, but a general rule that preventing the use of property leads to liability for damage. See Ketzot ha-Choshen 363, no. 3, who raises the objection that this Scriptural decree deviates from the ordinary rules of damages. However, alongside the Rama stands the Ramban, who writes in his Kuntres Dinei De-Garmi:

 

The Torah imposes liability for shevet in the case in which one locked another person in a room and caused him to be idle… You might ask: How is he liable according to the Sages who do not impose liability for indirect damage; surely he [merely] causes him to be idle from his work and not profit! This is not difficult. From the time that he locks him in, he causes him a loss, until he sets him free.

 

            The Ramban explains why the case of hadkei be-indrona does not fall into the category of gerama, or even garmi, according to the views that there is no liability for garmi, arguing that we are dealing with direct damage (Editor’s note: see shiur #2 for a discussion of the difference between gerama and garmi). The Ramban does not suggest that we are dealing here with a Scriptural decree unique to the case of a chovel.

 

            How are we to understand the position of the Rama and the Ramban? Surely it is explicitly stated that one who is chovel be-shogeg (unintentionally causes an injury to another person) is liable only for the nezek, but not for shevet, as the Scriptural decree does not apply to him? These Rishonim may have understood that the liability for imprisoning a person is not really part of the Scriptural decree of "Only he shall pay for the loss of his time." That Scriptural decree relates to the case of one who inflicts an injury upon another person, and they do not consider the case of unlawful imprisonment as a case of injury (whether because there is no violation of the prohibition, "Forty stripes he may give him, and not exceed," or for some other reason). In their view, the Gemara derives that even in this situation there is liability, but this liability is part of the general law governing a person who causes damage, and therefore it can be applied in other cases of damage as well.

 

            Now let us examine the words of the Rosh on our passage, who limits the possibility of imposing liability in the case of hadkei be-indrona:

 

It stands to reason that we are dealing with a case in which he brought the other person into the room and locked him inside. But if the other person had already been in the room and he locked him in, this is a case of gerama, similar to one who breaches a fence before an animal and it went out and it became lost, about which we said above in chapter Ha-Kones (55b) that he is exempt according to the laws of man. What is the difference between breaching a fence before it and locking it in a room and it dies of hunger? The Tosafot in chapter Elu hen ha-nisrafim (Sanhedrin 77a) wrote in similar fashion with respect to one who bound another person in a place where the sun or cold would eventually appear, who is exempt, that if he brought him from somewhere else, and bound him there, he is liable.

 

            The Rosh relates to the laws of gerama, and limits the liability to the case in which the imprisonment was entirely the action of the person who locked the other person in the room. Here, however, there arises the question: surely all liability for shevet is liability for  gerama – the offender did not do the damage in question, namely, the loss of wages; he merely brought about that the injured party would be unable to work, and for this the Torah imposes liability. There is room to say then that the exemption for gerama does not apply to shevet, for which there is liability that by its very essence overcomes the problem of gerama. It is, however, possible that when one causes an injury to another person in a manner that is defined as gerama, he is not defined as one who causes an injury to another person, and so he is not liable for the five payments. But even if this is so, in the case of the Rosh we are dealing with a case of shevet, whose entire substance is preventing a person from doing his work, and not the act of imprisonment in itself. What difference does it make then whether he brought the other person into the room and then locked the door, and the case where the other person entered the room on his own, and he locked the door behind him?

 

            It seems to me that even the Rosh agrees that in the case of hadkei be-indrona, the liability is not based on the Scriptural decree regarding shevet, but rather liability that is based on the general laws of damage, and the Gemara teaches that such imprisonment is not considered gerama. The Rosh likens the room to a place in which a blazing and life-threatening sun will eventually appear. Just as in that case there is room to discuss the parameters of a killer, so too here there is room to discuss the parameters of a person who causes damage by preventing another person from performing his work, because remaining in a room for an extended period of time interferes with a person's ability to make a living. But the act must be direct to the same extent as in the case in which the sun will eventually appear, and therefore when the offender places the victim in a room and locks him inside, there is room to impose liability.

 

            According to another explanation,[2] the Rosh adopts a position on a matter that will be discussed later concerning the nature of liability for shevet, or to be more precise the damage for which liability for shevet comes to compensate. One understanding is that this is liability for the loss of wages. So it would appear from the wording of the Rambam, where he explains why shevet (like ripuy (healing), but in contrast to nezek, tza’ar (pain) and boshet) is a chiyuv mammon (financial obligation), and not a kenas (penalty): "The assessments for shevet and ripuy represent a chiyuv mammon 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 on medical treatment and the money he lost through unemployment" (Hilkhot Chovel u-Mazik 5:17).[3] However, just as we proposed in our previous shiur dealing with ripuy an alternative understanding to these words of the Rambam with respect to ripuy, so too regarding shevet, it may be suggested that this is liability for the impairment of the body's earning potential. According to this understanding it turns out that we are dealing with an impairment that is similar to that of nezek, only that the liability that is created is not compensation for the depreciation in value of the body that suffered injury, but rather payment for the lost work. According to the Rambam, liability for shevet is indeed a special case in which the Torah imposes liability for gerama, and therefore the question raised above is in place. It may, however, be argued that the Rosh adopted the second understanding, and that in his view liability for shevet is not liability for gerama, but rather liability for direct impairment of the body. This is a novel liability, because it is not the usual type of liability in the case of damage, namely, for impairment of the value of the object, and therefore it was necessary to introduce it in the context of a chovel. But it is not an instance of gerama. The passage dealing with hadkei be-indrona teaches that imprisoning a person is also considered an impairment of his earning potential, but of course the impairment must be direct, just like all impairments in the realm of damage.

 

II. The Requirements of justice do not suffer

 

Shevet – the injured person is considered as if he were a shomer kishu’in (watchman of cucumber beds): Our Rabbis taught: "[In the case of assessing] shevet, the injured person is considered as if he would have been a shomer kishu’in. You might say that the requirements of justice suffer thereby, since when he was well he would surely not necessarily have worked for the wages of a shomer kishu’in but might have carried buckets of water and been paid accordingly, or have acted as a messenger and been paid accordingly. But in truth 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. (85b)

 

            This passage is exceedingly difficult to understand; the Rishonim toiled to explain it and suggested several understandings. We will open the discussion with the viewpoint of Tosafot, which though it is forced with respect to the wording of the Gemara, is easy to understand from a logical perspective.

 

            As for the Gemara's question: "You might say that the requirements of justice suffer thereby, since when he was well he would surely not necessarily have worked for the wages of a shomer kishu’in " – the Tosafot (s.v., dekhi) explain this as relating to the victim's situation prior to the injury, that is to say, the word "mitpach" ("when he was well") refers not to the victim's recovery, but to his prior healthy state. Therefore, the professional suggestions mentioned in the question: "water-carrier" and "messenger" are examples of professions of a healthy person. The Gemara's answer refers back to what we already saw in the mishna: the money paid for shevet compensates the victim for the loss in earnings during the period that he is incapable of working, but this takes into consideration the fact that he already received the value of the amputated limb, and therefore we examine the profession in which he can work in light of his new situation. The Ramban in his Milchamot (31a in Alfasi) accepts this simple understanding of Tosafot, and adds that in some authoritative texts the words "since when he was well" do not even appear.

 

            It is clear, however, that Rashi did not accept this explanation, for he explains our reading in its simple sense, that the Gemara's question relates to the victim's state after his recovery, that even then he can perform work earning him a higher salary than that of a shomer kishu'in. Thus, for example, a person whose hand was amputated can still work as a messenger. The Gemara's answer, according to Rashi, is: "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 after he recovers he is not fit to carry water or serve as an agent." This is difficult to understand, for the Gemara's answer seems to be simply rejecting the question's assumption with its own assumption that the injured person can no longer perform the proposed tasks.

 

            The Ra'avad in his novellae explains the Gemara's question as did Rashi, and the answer he explains as follows:

 

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 shomer kishu'in, as that is mostly what he does, and he reduces the price to that of a shomer kishu'in. And whatever he is reduced in value the other one adds to the payment [for nezek]. For this reason we only assess his shevet now as a shomer kishu'in.

 

            The Ra'avad explains that even though a person whose hand or foot was amputated can engage in higher paid work, his primary work is that of a shomer kishu'in. Therefore when we assess his value as a slave sold in the market, his loss in value reflects a transition from the work of a healthy person to the level of a shomer kishu'in, as this is the main work for which slave buyers would purchase him. Since the person who caused the injury pays for this great depreciation in value in the framework of nezek, he has already covered the impairment of his victim's work potential in a manner that exceeds his actual physical impairment. It follows then that the payment for shevet should only compensate him for the fact that during the recovery period he was unable to work even as a shomer kishu'in.

 

            Now let us see the unique approach proposed by the Rama in the Shita Mekubetzet and the Ba'al ha-Ma'or (30b-31a in Alfasi) to the difficulty in understanding our passage. Their words are slightly difficult to understand, and it is possible that they are not absolutely identical, but in this framework we will content ourselves with the view of the Ba'al ha-Ma'or as it was understood by the Ramban in his Milchamot (who himself disagreed with him). The Ba'al ha-Ma'or also understands the Gemara's question in its plain sense, that is to say, that even after the injured party was paid the value of his hand in the framework of nezek, he can still engage in work after his recovery that generates greater income than that received by a shomer kishu'in.

 

But the Ba'al ha-Ma'or explains the answer as follows: when, in the framework of payment for the injury, an assessment is made of the victim's value as a slave sold in the market place, we do not assess the difference in value between an ordinary healthy man who is 30 years old and a healthy (i.e., following recovery) man who is 30 years old but is now an amputee. The payment made for injury is greater than this, for we assess the difference between an ordinary healthy man who is 30 years old and his present condition, that is to say, 30 years old with his hand cut off and still expecting a lengthy recovery period, something that presumably reduces his value as a slave even further. What we ordinarily refer to as "shevet" is already included, according to the Ba'al ha-Ma'or, in payment for nezek, because it is part of the victim's loss in value on the slave market.

 

Here arises the question: after such broad liability for nezek, what room is there left for liability for shevet? The Ba'al ha-Ma'or explains that liability for shevet is based on a special Scriptural decree, which offers compensation for the work that the injured party could have performed parallel to the main work that he lost owing to the amputated limb. The injured party could not have carried water or served as a messenger parallel to his regular work prior to his injury, but theoretically speaking he could have been a shomer kishu'in at the same time that he was working in the field. Since he was not accustomed to do so, no real damage in this respect was caused him by the injury, but this is the special Scriptural decree regarding shevet according to the Ba'al ha-Ma'or. Following his recovery the injured person can presumably perform work parallel to his new work should he so desire, and so this new liability relates exclusively to the period during which he was unable to work.

 

            The Ramban, who as stated earlier adopted the understanding of the Tosafot, raises various objections to the position of the Ba'al ha-Ma'or,[4] including an objection regarding the assessment of the nezek: "For it is impossible to say that we assess how much he is worth when he is sick, for if so the person who caused the injury suffers unduly, for a person only buys a sick slave far below his true value, as nobody wants to buy a master for himself, so that he will have to minister to him until he recovers, and perhaps he will die. And even though the court assessed that he would live, nevertheless his value is exceedingly depressed." Because of this persuasive argument, the Ramban understands that the assessment of the nezek must ignore the victim's temporary situation and relate to him instead as he will be following his recovery, but still at his present age. It is possible, however, that even the Ba'al ha-Ma'or does not assess the injured person with his illness, but rather he calculates his value after his recovery, on the assumption that the market is sufficiently sophisticated to consider in the assessment the fact that we are dealing with a person whose potential work period is two months shorter.[5]

 

            The Ba'al ha-Ma'or's novel position regarding nezek and shevet is connected to questions that will occupy us in next week's shiur.

 

III. Determining work skills with respect to NEZEK and SHEVET

 

            The payment made for shevet is compensation for lost earnings, and for this purpose we must examine how we quantify the earnings level of the injured party before us. The payment made for nezek is determined through an assessment of the drop in value as a slave sold in the market, and here too we must examine how we determine the work skills of the slave being sold. Both the Rishonim and the Acharonim on our passage address these two questions.

 

SHEVET

 

            As we just saw, with respect to shevet, the Rama and the Ba'al ha-Ma'or propose that we are dealing with a new Scriptural decree that compensates the injured party for work that he did not perform in the past, and as it would appear, he would also not occupy himself with it had he not been injured, but theoretically he could have performed parallel to his own work. For the loss of this theoretical earning power, compensation is made with the payment for shevet. The limits of this novel position are not clear – is the injured party to be compensated for the theoretical possibility of working twenty hours a day? Is he to be compensated for the theoretical possibility of learning a rare but high-paying trade which he can ply in parallel to his own work? The matter requires further study. In any event, it should be emphasized that even if we understand payment for shevet as compensation for impairment of the injured party's work potential, and not as compensation for the lost wages, it is not at all necessary to say that compensation must be offered for every rare and theoretical work potential.

 

            On the assumption that compensation is offered for theoretical and exceptional potentials, we are essentially entering the realm of "what would have been if?" – how much the injured party could have earned had it not been for the injury. Here the Tosafot propose (s.v. ro'in, second half) that the assessment of the injured party "as a shomer kishu'in" relates to "an ordinary person, who does not have a trade." The economic reality to which Chazal and the Tosafot relate is that ordinary people do not have special professional training, but rather they support themselves from any available work, primarily physical work. The assessment of the depreciation of such people is made in accordance with the standard slave market, and the assessment of an amputee is like a shomer kishu'in, and the like. However, if a person has a high-paying profession in which he can still work even after the amputation of his limbs, e.g., a jeweler whose feet were amputated, he is entitled to receive his full wages for the period during which he was convalescing and unable to work.

 

            The Rosh (no. 4), who continued along these lines, adduced proof from the Gemara on p. 86a that imposes liability for shevet on one who shaves the head of another person, for he lost the ability to work as a dancer in wine houses who has to make gestures by moving his head. The Rosh concludes: "This implies that each person is compensated for shevet according to what he regularly does." That is to say, the Rosh understands in that passage that we are dealing with a profession unique to the specific person who suffered the injury, and he is entitled to compensation according to his own profession. So too it would appear from Rashi there: "Even though he did not make him idle from other work, he gives him this compensation for shevet, since this is his profession."

 

The Rambam appears to disagree (Hilkhot Chovel u-Mazik 2:4): "When a person shaves the head of another person… he is liable for all five assessments… He must also pay him for shevet, because previously he was fit to dance and shake the locks of his hair, and he is thus prevented from performing this type of work." The Rambam's wording implies that we are not dealing here with a person for whom this is his profession, but rather that this is potential work for anybody, only that the opportunity was removed here because the person's head was shaved, even if in reality he is an office clerk who continues with his work as usual, and even though this type of work is far from being common. If this reading is correct, it turns out that according to the Rambam – perhaps like the Ba'al ha-Ma'or on this point – liability for shevet is not at all based on actual financial loss, but rather on an asset that was taken away from the injured person – his theoretical ability to earn money from a particular part of his body. As was stated above, this is a difficult position, especially according to the Rambam who explicitly maintains that payment for shevet is compensation for the financial loss that follows from the fact that injured party is unable to work (Hilkhot Chovel u-Mazik 5:7). It is possible that the Rambam maintains that even a theoretical financial loss is considered a financial loss. The matter requires further study.

 

            The Maharshal (Yam shel Shelomo, no. 11) understands that liability for shevet relates specifically to the amount that the injured party would have earned had he not been injured. He adduces proof from the wording of the verse: "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." In his view, we are dealing specifically with the amount that he would have earned with certainty, for the burden of proof falls on the plaintiff. The Maharshal derives from here that a person who had been unemployed is ineligible for compensation for shevet, even if he had been capable of working. Such payment is due only to one who would certainly have had income.

 

            The Maharshal notes a second practical difference: in his view, a merchant is not eligible for compensation for shevet, for there is no certainty that he would have earned a profit. This determination seems to be unfair – surely trade is his source of livelihood, and he has been temporarily denied the possibility of engaging in it. The Shevut Ya'akov (I, no. 179) rejects this position of the Maharshal. He writes that even if the injured party had been employed to perform physical labor, there is no guaranteed income, "and all the words of the Posekim imply that compensation for shevet in all professions is assessed in accordance with what the person does to make a living, and that even merchants are included in this rule, against the Maharshal who distinguishes based merely on gut feelings." Of course, thought must be given to how we calculate shevet in the case of merchants. It is possible that we must assess the merchant's average monthly income over time, and treat this average income as the economic value of a month's work from his perspective.

 

NEZEK

 

            Let us now consider the weightier issue from a financial perspective – assessment of the nezek. Returning once again to the words of the Rosh, the Rosh opens with one approach:

 

The assessment of the nezek is made for each person according to his profession. If he was a jeweler and he broke his foot, we assess the value of a slave who is a jeweler, how much he went down in value as a result of the loss of his foot, this being a minimal amount, and if his hand had been amputated, it is a large amount.

 

            The Rosh proposes that also with respect to depreciation resulting from the injury, the Gemara is dealing with an average person who has no specialized skill. But if he has a specific profession, the injury must be assessed in accordance with his circumstances, for better or for worse. An injury to a pianist's fingers is very costly, whereas an injury to the foot of an office worker is minimal. We must imagine a slave market in which we find for sale pianists, and artists, judges and bankers, and the depreciation in value of each of them must be assessed in accordance with the designation with which he would presumably have been sold. The Rosh does not, however, hold fast to this position, but rather he inclines to distinguish between a factor that increases the liability and one that decreases it:

 

It seems, however, that the assessment that is made for each person in accordance with his profession is only to add to the assessment. For example, if he cut off the hand of a slave who is a jeweler. But if he cut off his foot, and the assessment in his case would be less than the assessment of a slave who must be ready to do his master's bidding, because in the case of a slave who is a jeweler, his master is not so particular about the loss of a foot, since he is fit for his primary work, and he will be more fixed in his work.[6] [In such a case] the depreciation is assessed as if he were not a jeweler. For it stands to reason that he should not suffer a loss because of his craft and status, for if he wishes he will not work in this craft, and he can be like any other person who is sold for all purposes.

 

            A slave who is a jeweler can also function as an unskilled worker. Therefore, argues the Rosh, there is no justification to deny him the compensation that is due him for the loss of the use of his foot, for he could have sold himself for all kinds of work. Here the Rosh introduces an objective dimension into the assessment of nezek, in contrast to what we understood from his words regarding shevet. Regarding shevet, we are dealing with loss of earnings, which is determined in accordance with the sum that the injured party would presumably have earned, for better or for worse. What happens with respect to nezek? It may be proposed that according to the Rosh two laws govern the assessment of such depreciation: one law whose conceptual basis is similar to the "general loss of livelihood" (shevet gedola) mentioned by Abaye on p. 86a, i.e., the sum that represents the totality of the work that the injured party could potentially have engaged in until the end of his life; and a second law based on the depreciation in value of the injured party's body, which is measured in accordance with the economic value of the basic physical abilities of the average worker. For this reason, individual work skills can increase the assessment, but they cannot reduce it.

 

            As a rule, we see that the Torah's decision to impose liability based on the value of a slave that is sold in the market place, and not to impose liability only for shevet gedola, which examines the loss in earning power for the rest of the injured party's life, not only reduces the liability of the person who caused the injury, but changes its nature. Shevet is measured, according to the Rosh, according to the actual skills of the injured party, for better or for worse. Had we come to assess the shevet gedola of a child who suffered an injury, we would have had to guess the work skills that he might have developed in the future. Thus, for example, we would have had to decide whether to award a child growing up in a well-to-do neighborhood a different sum than that which would be given to the child of a single mother growing up in poverty in a crime-stricken neighborhood. The mechanism for calculating the depreciation resulting from the injury frees us from having to address such questions – we assess him as a slave that is sold in the market place, and to this we add the work skills that he has already developed. Therefore, compensation for nezek leads to greater liability than shevet gedola. For example, we saw above that according to the Maharshal an unemployed person is not eligible for compensation for shevet, but presumably he is eligible for compensation for nezek.

 

            The Maharshal (Yam shel Shelomo, ibid.) presents a different approach to nezek than does the Rosh. In his view, we do not increase the compensation for nezek because of the work skills of the injured party, because as opposed to his position regarding shevet, here we are dealing with the depreciation in value of the damaged object, and here the damaged object is the body:

 

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).[7] 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.

 

            This is difficult to understand, because a slave is sold not only based on his body, but on his work skills. Why then consider only "obvious things that are evident to the eye?" It would seem that the Shakh (420, no. 3) is right in his stricture relating to the Maharshal: "There is no basis for his words, for in any event his depreciation is greater than that of a slave who has no special skills."

 

            Some suggest that according to the Maharshal, payment for nezek, as opposed to payment for shevet, does not come to compensate the injured party for a financial loss, but rather it serves as a ransom for the organs of the person who caused the injury, and therefore it is determined in accordance with the organ itself and not in accordance with the injured party's personal work skills that were impaired. It is possible that the core of this understanding is correct in itself, and that this is the foundation of the Maharshal's distinction between payment for shevet – financial compensation – and payment for nezek – punishment. It must be remembered, however, that the law of assessing the damage like a slave sold in the market place – including the disagreement between the Rosh and the Maharshal about its parameters – applies also to an animal that caused an injury to a person, about which there is no law of injury (and even according to the Rambam, this is not a kenas). And furthermore, this does not resolve the difficulty with the Maharshal's position, for in the end we assess the damage like a slave sold in the market place, and the slave's price is determined in accordance with his work skills. In addition, as I emphasized in the first shiur on chapter Ha-Chovel, one should not forget that the law of compensation for nezek must serve also as the primary tool for repairing the monetary loss. Therefore, no conclusion may be drawn from the words of the Rosh one way or the other. The only difference between shevet and depreciation resulting from the injury in the context under discussion according to the viewpoint of the Rosh as we have explained it is that regarding shevet we follow subjective factors for leniency and for stringency, whereas regarding nezek, in all cases there is room to impose liability according to the impairment of the physical capabilities of an unskilled worker. This follows from the fact that regarding nezek, compensation is made also for the damage to the body as a marketable asset, but this, as stated above, applies also to an injury caused to a person by an animal.

 

            As for the practical Halakha, the Rambam and the Shulchan Arukh (who saw the words of the Rosh) copy the wording of the Mishna that the injured party is assessed like a slave, and it is difficult to know what they say about taking their work abilities into consideration. The Tur cites the words of the Rosh, and so too rules the Rema (420:15).

 

(Translated by David Strauss)

 

 

Sources For the next ShiurBava Kama 17

Payment for shevet (II)

 

            In next week's shiur we will continue to examine the passages dealing with compensation for shevet and nezek on pp. 85b-86a, and through them we will come to a deeper understanding of the other payments imposed on one who causes an injury to another person. Learn the Gemara until p. 86a, "pelugta de-Abaye ve-Rava" (though in the shiur we will not be able to deal with the last section dealing with one who causes an injury to a Jewish slave). These are the additional sources in the order that we will encounter them in the shiur:

 

1) Shevet that temporarily diminishes the injured party's value – Attention should be paid to the fact that the disagreement between Abaye and Rav on this issue is essentially a disagreement about the fundamental parameters of liability for nezek. Keep in mind the disagreement among the Rishonim about whether the evaluation of the depreciation includes the loss of ability to work. The prevalent view is presented in the Tosafot and in the Ramban in his Milchamot (30b in Alfasi). It is recommended that one see how the Ramban in the Milchamot (in the section cited below) relates in this context to our passage. Try to analyze in this light the disagreement between Abaye and Rava. As for the viewpoint of Abaye, see also Tosafot 85b, s.v. shevet.

 

What is the law of shevet in general and shevet that temporarily diminishes the injured party's value in particular, in places where the special liabilities imposed upon one who caused an injury to another person do not apply? See Tosafot Rabbeinu Peretz (below).

 

As for the precise manner in which shevet is evaluated according to Rava, see the disagreement between Rashi, 86a, s.v. she-be-khol yom va-yom, and the Rambam, Hilkhot Chovel u-Mazik 2:11. What is the Rambam's distinction between shevet as a shomer kishu'in, when the injured party receives the full wage of a shomer kishu'in, and shevet in the case of a broken hand that will eventually recover fully, when the injured party receives only the wage of an idle worker?

 

2) The passage dealing with one who causes an injury and then causes another injury to the same person to the point that he is liable for the injured party's entire value (85b) – Try to understand the various viewpoints of the Rishonim regarding all five payments imposed on one who causes an injury to another person: Rashi; Tosafot, s.v. nehi; Rosh, no. 5; Ra'avad (see below); Rambam, Hilkhot Chovel u-Mazik 2:13.

 

Ramban, Milchamot (30b in Alfasi)

 

For it is impossible to say that we assess how much he is worth when he is sick, for if so the person who caused the injury suffers unduly, for a person only buys a sick slave far below his true value, as nobody wants to buy a master for himself, so that he will have to minister to him until he recovers, and perhaps he will die. And even though the court assessed that he would live, nevertheless his value is exceedingly depressed. This is similar to what we said about the case in which he struck him on his arm and the arm was broken but will ultimately recover fully, that we do not assess for him his diminishment in value, since he will ultimately recover fully. Here too the diminishment in value resulting from the illness will ultimately be restored fully when he recovers. And even according to the one who disagrees there, agrees here that we never assess the value of a sick slave, for if so he would become liable to pay for deprecation for his shevet that is the diminishment of his value.

 

Chiddushei ha-Ra'avad 85b:

 

There is a practical ramification with respect to paying him for the tza’ar and boshet of each [injury]. Even though he does not compensate him for nezek and ripuy for each [injury], for it is as if he killed him and he paid him his full value, and there is no healing for a dead person, nevertheless he does pay him for the tza’ar and boshet of each [injury], since he increased his boshet and tza’ar. Or perhaps since they did not evaluate him until he killed him, there is no evaluation of tza’ar and boshet for a dead person. And if you wish to say that since they did not evaluate him, he does not pay him, what is the law if they evaluated him, but he did not pay him before he made him deaf? Do we say that since they evaluated him, he already became liable to him, or perhaps since he did not yet pay him, and now he became liable to pay him his entire value, it is as if he killed him little by little, in which case he pays him only his entire value.

 

Tosafot Rabbeinu Peretz 86a, s.v. Rava:

 

Whereas Rava said that he must only pay him for the shevet for each day [until he recovers]. This means for all the days that he is idle until he is restored to his previous state, he gives him each day the sum for which workers are hired in the market place. Now you can say that what Rava says that he gives him the sum for which workers are hired in the market place, is the shevet that Abaye calls the loss of his hand. For when we evaluate him as if he came now to be sold, his value is diminished in the amount of his shevet for each day. For anyone wanting to buy him will diminish from his price all that he would have earned each day of the days of his sickness. It may be suggested that if he would not give him his shevet for each day, but rather his shevet gedola, as I have explained, it would turn out that you cause the injured party [it seems that this should read "the party who caused the injury"] to suffer unduly. For there are people who are not experts regarding this illness how long it will take him to recover, and they will reduce his price excessively, thinking that he will not recover for an extended period of time, when actually he is due to recover within a limited period of time. Therefore when he pays him for his shevet for each day, it will be in accordance with his injury. This resolves the question raised earlier regarding one who struck another person on his hand, and broke it, and ultimately it will recover fully. For according to Abaye he pays him in the framework of nezek, the sum by which his value would be diminished were he to sell himself at this time owing to being idle each day. This follows from what Abaye said that he compensates him for his shevet gedola, namely, that we evaluate him as if he were being sold at this time. And according to Rava, he pays him in the framework of shevet. This follows from what Rava said that he pays him his shevet for each day like workers being hired out in the market place. But we do not evaluate him as if he came to be sold. This implies that he pays him in the framework of shevet, as I have explained. From here we understand that Abaye and Rave disagree about nezek from which the injured party will ultimately recover, whether he pays the injured party for his shevet in the framework of nezek or in the framework of shevet. According to Abaye he pays him in the framework of nezek, and according to Rava he pays him in the framework of shevet.

From here it appears that we should exempt a person who caused an injury to another person's horse from which it will ultimately recover fully from paying for the shevet….  

This does not seem correct to the Ritzva, for there is no comparison between injury to an animal and injury to a human being, for certainly in the case of injury to a human being, compensation must be given for shevet, but not as part of nezek. But in the case of an injury to an animal, I can always say to you that it must be made as part of nezek. The reason is that in the case of a human being, whose value is great, and the diminishment in his value is not evident in the assessment, compensation must be made as payment for shevet. Alternatively, because a person does not stand to be sold. But in the case of an animal, whose value is small, and the diminishment in its value is evident in its assessment, I can always say to you that even according to Rava compensation is made as payment for nezek. And one who causes an injury to another person's horse is liable to pay for its idle time as nezek. The verse is not dealing with this case, for the damage is before us, for would he wish to sell it immediately, its value would be diminished because of the period of its inability to work. Therefore it seems that the exemption that we grant a person from liability for causing the loss of an animal's work is [only] in a case when he locks the animal in a house and causes it to be idle from work, but not when he causes it an injury.

And so too Rabbeinu Chayyim Kohen Tzedek said about one who caused an injury to another person's animal, even if it will ultimately recover fully, that according to the one who imposes liability for garmi, he is liable to compensate him, lest a person provoke his fellow, and the latter will go off and cause an injury to the former's animals, causing them injuries from which they will eventually recover after a few days, and he will be exempt.


[1] In the previous shiur I mentioned the words of the Mordekhai in the ninth chapter of Bava Kama (114) in which he writes that indeed one who locks up a human is liable while one who locks up an animal is exempt. However, he explains the distinction to be based on gerama, for damaging his money (the animal) causes a loss of money (or a loss of work), and that is too indirect. However, locking up a person is a more direct form of damage and he is therefore liable. As I noted, it is hard to understand his position (even if we accept his distinction regarding the scope of gerama), for there is an exemption for locking someone up when it is done unintentionally (shogeg), and the liability is specifically in a situation in which the Scriptural degree of a chovel applies, stemming from the stringency of a situation of a chovel be-meizid.

[2] Tz. Handler, "Be-Inyan Tashlumei Chabala," Ha-Metivta, 5752, p. 576.

[3] This point relating to the Rambam does not appear in the aforementioned article.

[4] For example, the Ramban comments on the assumption regarding the ability to perform additional work at the same time: "It is difficult, for Rava said that the injured person is considered as if he were grinding in the mill, and it is impossible for a person to be occupied with his work with one hand and grind with the other. And that which he says that it is possible to do this with great effort – I swear that he never ground flour in his life, as this is the most difficult work of all." The Ramban also asks why the payment for nezek does not include also the loss of the parallel work, for that too could raise the value of the injured party on the slave market.

[5] So it would appear from the words of the Meiri at the stage where he explains the passage in accordance with the view of the Ba'al ha-Ma'or: "This assessment after an injury is made after the injured party recovers, and it turns out that his having been idled during the days of his incapacitation from the work that he was accustomed to do prior to his injury was already included in the payment for depreciation, for the assessment how much he is worth after the injury only begins after he has recovered."

[6] An interesting and even comical point – the amputation of the jeweler slave's foot actually improved his economic efficiency from his master's perspective, because from now on the slave will be more focused on his work.

[7] Yam shel Shelomo, chap. 8, no. 1. There the Maharshal explains like the Rosh in sec. 1 in our chapter, which we already saw in the past, that the assessment of the injury like a non-Jewish slave is based on the principle that is derived from the verse, "and shall feed in another man's field," that we do not grant too great a disadvantage to the person who caused the damage.