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Fixed penalties (90a-91a)

Rav Shmuel Shimoni



            In today’s shiur we will study the mishna on p. 90a-90b, except for the last part of the mishna which will be examined in another two weeks when we reach the Gemara on p. 91a-91b. The Gemara on the page following the mishna deals with a variety of issues. Next week's shiur will be dedicated to one of them, "omed benezikin," the question of whether it is necessary to determine if the instrument that caused the damage was fit to do so. In today's shiur we will also address the issue of verbal insult.


I. The Sums of money mentioned in the Mishna


            The mishna on p. 90a opens with a fixed price list for various types of injury, which unlike what we have seen thus far in chapter Ha-Chovel, does not require a precise evaluation of the actual injury. The Rambam codifies these laws as follows:


There are many types of blows that involve embarrassment and a small amount of pain, but no permanent damage. Our Sages have already ordained specific payments for these types of blows. Whoever strikes another person with one of these blows must pay this specified amount. These are all considered to be a kenas (penalty). The specific amount that the person must pay is the assessment for tza’ar (pain), boshet (humiliation), ripuy (medical attention) and shevet (unemployment). Whether or not the injured requires medical attention and loses employment, this is the amount that must be paid. (Hilkhot Chovel u-Mazik 3:8)


            The words of the Rambam teach us that what characterizes these blows is that they are physical blows that do not cause permanent damage, but they do involve boshet and tza’ar – though the implication is that the pain is not the focus – and sometimes also loss of employment and healing. We also learn that in such cases the Sages preferred to replace the usual assessments of damage with a fixed sum that is supposed to cover all four payments in global fashion. Since we are dealing with a sum of money that is not directly connected to the specific blow, the liability is defined as a kenas, even though it covers shevet and ripuy, which even according to the Rambam, are ordinary monetary obligations (a chiyuv mammon) and not penalties.


            Some understand that, according to the Rambam, the basic liability in such cases is by rabbinic ordinance, for by Torah law these cases are not defined as cases of personal injury. In my opinion, however, this is not the way to understand the Rambam. We are dealing with a physical blow that sometimes involves all of the liabilities of a person who causes an injury, except for nezek (depreciation in value as a result of the injury, and as may be recalled from p. 85b, each of these other four liabilities can exist without liability for nezek). The Sages did not create the liability; they merely fixed the payment. Nevertheless, this suffices to define the liability as a kenas.[1]


            In contrast to the Rambam, Rashi in his commentary to our mishna writes: "He pays him a sela – for the boshet." This implies that the fixed sum is exclusively payment for boshet. And it stands to reason that there is room to assess for other damages and impose liability (so writes Rashi, 27b, s.v. harei amru, shelosh esreh; 92a, s.v. kol eilu).


            The Rosh understands that the Rif has an intermediate position on the matter:


Rav Alfas, z"l, writes that these payments are for his boshet and tza'ar … Because these two things are found in most cases of injury caused by one person to another. If there is [also] ripuy and shevet, it is all according to the situation, and regarding these the Sages could not give a fixed sum. (chap. 3, no. 2)


            What is the difference between boshet and tza'ar, on the one hand, and ripuy and shevet, on the other? The distinction is, of course, between monetary damage and non-monetary damage. But it seems to me that the distinction does not stem from an understanding (mistaken, in my opinion) that boshet and tza'ar are not real damage. So too in my opinion the Rosh's words, "because these two things are found in most cases of injury," should not be understood to mean that the tza'ar and boshet are similar in the cases under discussion. The Rosh's distinction stems from the great difficulty that exists in evaluating non-monetary damage, an issue that we discussed at length in our shiur on payment for tza'ar, and also from the built-in gap between the damage and the compensation made for it, which translates a non-monetary injury into monetary compensation. In such cases the Sages understood that there is room to replace the ordinary methods of assessing the damage with a fixed sum, whereas regarding shevet and ripuy there is no justification for this.


            At any rate, it seems that all would agree with Rashi that our mishna focuses on the payment for boshet, and also that the mishna includes blows that involve nothing but boshet: spitting upon a person, removing his clothing, and uncovering the head of a woman. Here the Tannaim disagree as to whether the assessment varies according to the standing of the person who suffered the humiliation. According to the first Tanna, "all depends upon the dignity [of the humiliated person]," and the Gemara (91a, according to its conclusion) explains that the fixed sums listed in the first part of the mishna are maximum sums, and that it is possible to reduce them in accordance with the standing of the humiliated person.


The Tosafot (27b, s.v. harei) understand that the fixed sums in the first part of the mishna apply only to "the most distinguished person in Israel." This position greatly limits the significance of fixing a uniform sum – for in the ordinary case we assess the damage using the ordinary methods for assessing damage,[2] and the Sages merely created a ceiling that cannot be passed even in the case of the most distinguished person in Israel.


In contrast, the words of the Rambam imply otherwise:


Our Sages have already ordained specific payments for these types of blows… When are these assessments imposed? When a distinguished person is involved. If, however, an ignoble person is involved - one who is not particular about these things or the like - he receives only the amount of money that is appropriate for him, as assessed by the judges. For there are base people who are not concerned with being shamed and will demean themselves in any humiliating manner for foolishness and frivolity, or to receive a peruta from the fools who jest with them. (Hilkhot Chovel u-Mazik 3:8, 11)


            The Rambam implies that the rule is to impose the fixed sum, and the exception is the case in which we impose less than the fixed sum, and the injured party "receives only the amount of money that is appropriate for him, as assessed by the judges." This is the case of a base person, regarding whom the injury is clearly smaller.


            Rabbi Akiva disagrees with the first Tanna and says that "even the poor in Israel have to be considered as if they are freemen reduced in circumstances, for in fact they are all the descendants of Avraham, Yitzchak and Yaakov."[3] The clarification of the position of Rabbi Akiva and the law governing a person who is not particular about his dignity with respect to the fixed sums in the mishna according to the two positions, is of course connected to the latter part of the mishna, which includes the anecdote regarding someone who uncovered a woman's head in the marketplace; as stated earlier, we shall deal with this issue in two weeks' time. Here we will merely note that it is not necessary to conclude from the words of Rabbi Akiva that he agrees with the words of Rabbi Meir, above p. 86a, that in general with respect to liability for boshet we do not distinguish between different people who suffered boshet in accordance with their economic standing, as they are all descendants of Avraham, Yitzchak and Yaakov, for Rabbi Akiva is dealing with cases where the Sages fixed a sum, and in his opinion a poor person should not be singled out as an exception (see also Rosh, above, no. 7).


            Establishing fixed sums is an efficient halakhic mechanism, which alleviates the difficulty of assessing the injury and allows for a quick judicial decision. Nevertheless, it raises concern about viewing a person's dignity as merchandise sold in the market place. The Gemara above (p. 37a) discusses a somewhat grotesque illustration of this concern:


The scoundrel Hanan, having boxed another man's ear, was brought before Rav Huna, who ordered him to go and pay the plaintiff half a zuz. As [Hanan] had a battered zuz he desired to pay the plaintiff the half zuz [which was due] out of it. But as it could not be exchanged, he slapped him again and gave him [the whole zuz].


            This story might come to warn us about the danger that is inherent to a fixed assessment system. The system itself is just, but we must be careful about the inherent dangers.


II. Spitting and the law Governing Verbal insult


            The mishna teaches: "If he spat so that the spittle reached him… he must pay him four hundred zuz." The Gemara above (p. 85b) lists the case of spitting in the face as an example of boshet in a case where there was no nezek, but our mishna implies that we do not distinguish in accordance with the place upon which the spittle landed, and that the fixed sum is uniform. Nevertheless, our Gemara understands that the liability is conditioned on a blow being to the body itself.


Rav Papa said: This ruling applies only where it reached him [his person], but if it reached only his garment this would not be so.[4] But why should this not be equivalent to an insult in words? It was stated in the West in the name of Rabbi Yose bar Avin: This proves that where the insult was merely in words, there would be exemption from all liability. (91a)


            The Gemara initially thought that anyone who humiliates another person is liable, and therefore it questions the requirement that the blow be to the body itself. It concludes that liability for boshet is found only in the context of a blow to the body itself. Even though it is not necessary that there be tza'ar or physical injury (not even temporary injury in the form of ripuy or shevet), it is not defined as injury unless there is a blow to the body itself. The Rosh writes:


If the insult is merely in words, he is exempt. The reason seems to be that it is written: "And she takes hold of his private parts" (Devarim 25:11), which implies that the Torah only imposes liability for humiliation to his body. But if he insulted him with words, or if he spat on his clothing, he is exempt. And Rav Sherira z"l wrote that even for verbal humiliation he is placed under a ban until he appeases him in accordance with his dignity. And it stands to reason that verbal humiliation is more humiliating than physical humiliation, for there is nothing as great as evil talk and slander that a person spreads about his fellow. (no. 15)


            The attitude toward one who verbally humiliates another person is severe (see also Rambam 3:5-7). The Rosh even emphasizes that the psychological hurt that verbal insult causes is greater than that of physical humiliation. Nevertheless, the liability that the Torah imposes for boshet is only for humiliation to a person's body. As the Rosh explains, we are dealing with a Scriptural decree, which seems to come to set a clear distinction between non-physical violence, despite the unequivocal recognition of its severity, and physical violence, which constitutes a separate category in its severity, and necessitates compensation by Torah law. There can be physical violence whose entire significance lies in the realm of boshet, e.g., spittle that lands on a person's body, but this still preserves the dividing line between such an injury and verbal insult that does not fall into the category of physical violence.


            When one person uncovers the parts of another person's body that are generally covered, he is liable for boshet, as was explained above, p. 86b and also in our mishna. It stands to reason that this is not like verbal humiliation or spittle that falls on a person's clothing. While it is true that the offender did not touch the victim's body, the subject of the injury is the body and not the clothing: humiliation caused in connection with the body itself falls into a different category than humiliation that is not connected to an experience of the body.


The law regarding verbal humiliation is codified by the Rambam as follows: "When one humiliates another person with words, or he spits on his clothing, he is not liable to offer financial compensation."[5] Here is the place to consider the words of the Rambam in a different context (5:6-8), where he explains why a person who caused an injury not in the presence of witnesses and admitted his offence before a court must pay for the boshet, even though it is considered a kenas:


If, however, there are no witnesses there at all, the injured person states: "This person injured me," and the accused admits doing so, he is not liable for the assessments for nezek and tza'ar. He is, however, liable for the assessments for shevet, boshet and ripuy, because of his own admission…. Why should a person pay these three assessments on the basis of his own admission? The assessments for shevet and ripuy represent a chiyuv mammon and are not considered to be a kenas …. And with regard to boshet, it was when he admitted before the court that he caused the injury that he brought about the humiliation. For when an injury is caused in private, a person is not caused any embarrassment. It is his admission before the court that embarrasses him. From this one can conclude that there is no difference with regard to the boshet assessment, whether that assessment is due him because he caused the person to be embarrassed in the presence of others, or it is due him because he made an acknowledgement in the presence of others of the embarrassment he caused. Therefore, a person is liable for a boshet assessment because of his own statements.


            Doesn't admission before a court fall into the category of verbal humiliation? Of course not. The Rambam's words should not be understood in their plain sense, that recounting the story of the injury before the court is itself the act of humiliation, for if this is what he means, then the law should be that when witnesses come and testify that Reuven caused Shimon an injury, the witnesses themselves should be liable for the humiliation that they caused alongside the liability imposed upon Reuven. It is clear then that the basic element that leads to liability for boshet is the act of injury that the offender committed against the body of his victim. However, the damage – the result of the humiliation – is only caused when the matter is publicized, and this happens only when there are witnesses at the time of the injury or when the offender himself admits his offence before a court.[6] Since the damage is caused before the court, it is not governed by the law that one who admits his liability for a kenas is exempt, and therefore we can impose liability. On the other hand the act of damage that makes him liable is the blow to the victim's body, and therefore it is not governed by the law that one who insults another person in words is exempt. We see then that humiliation is always akin to verbal humiliation, for humiliation is psychological injury, but the Torah only imposes liability when the humiliation follows from a blow to the body, and this is what happened here as well.


We also learn from the Rambam that the intent to cause damage, which is a special condition for liability for boshet, as we learned in shiur no. 6, is not the level of intent that is required for the imposition of liability, for one who admits his offence in a court does not intend to cause damage. The Rambam, as we suggested in the aforementioned shiur for a different reason, understands that intention to cause damage is a condition for defining the act as an act of humiliation, and therefore it is examined at the time of the act of injury, and not at the time of the admission in court, even though it is only the admission in court that leads to the liability of the offender.[7]


For those who wish to expand upon the matter of spitting and verbal humiliation, see the parallel passage in Ketubot 66a, and the Rishonim ad loc., including Rav Aharon Ha-Levi and the Meiri.



Sources For the next ShiurBava Kama 26

omed le-nezikin - Determining whether the instrument that caused the Damage was fit to do so


            In next week's shiur we will study the passage dealing with the issue whether or not we must determine whether the instrument that caused the damage was fit to do so (omed), on p. 91a: "Ibaye lehu yesh omed le-nezikin… min shemaya hu de-rachami alei."


            The Gemara assumes as a given that such a law exists with respect to murder. What is the foundation of this law? See Rashi, s.v. le-ketala, s.v. de-be'inan umdena; Rashi 90b, s.v., she-masar; Rambam, Hilkhot Rotzeach 3:1-6, and Hilkhot Chovel u-Mazik 1:18.


            Why is the Gemara uncertain whether or not this law applies to damage as well? See Rashi, s.v. le-ketala, s.v. aval le-nezikin. What is Rashi's approach and what are the difficulties with it? Can this be understood differently?


            In the shiur we will pay special attention to the law of omed with respect to injury that is discussed in one stage of the Gemara's proofs ("chamisha devarim omedin…") and in the following section ("amar mar amduhu ve-hivri"). For the foundation and parameters of this law, see Rambam, Hilkhot Chovel u-Mazik 2:14-16; Sema, Choshen Mishpat 420:11; Rabbeinu Yehonatan in Shita Mekubbetzet (ad loc.).


            What are the basic differences between the law of omed in murder, which was expanded to damage, and the law of omed regarding injury? Does the Gemara imply that we are dealing with two separate laws?


(Translated by David Strauss)

[1] Compare with Tosafot 27b, s.v. kenasa, who understand that we are not dealing with a kenas, but with a sum that for a different reason is not collected in Babylonia.    

[2] Which examine the amount of money in exchange for which a person of similar standing would be willing to undergo such humiliation (Rashi, 86a, s.v. shaiminan).

[3] It should be noted that according to the Rambam the first Tanna's emphasis relates not to poor people as opposed to wealthy people, but rather to people who are not particular about their dignity.

[4] The Meiri in Ketubot 66a cites a view that if one spat and the spittle reached another person's garment while he was wearing it, it is as if the spittle reached that other person's body, and so he is liable. This position, however, is exceptional and difficult.

[5] Afterwards the Rambam spells out the seriousness of verbal insult: "The court should, however, impose appropriate restraints concerning such matters in every place and time. If a person embarrasses a Torah scholar, he is liable to pay him for the full measure of embarrassment, even though he embarrassed him only by verbal abuse. The rule has already been ordained that anyone who embarrasses a Torah scholar, even with mere verbal abuse, is penalized and is required to pay 35 gold dinarim - i.e., the weight of 8 and ¾ sela'im. It is an accepted tradition, that this penalty is exacted in all places, in Eretz Yisrael and in the Diaspora. There have continually been instances of this in our community in Spain. There are some scholars who have waived this payment, and this is praiseworthy of them. There are those who demand payment and reach a compromise. The judges, however, tell the person who caused the embarrassment: You are obligated to pay him a pound of gold. Although a person who embarrasses someone else verbally is not liable for a financial payment, it is a grave sin. Only a wicked and foolish person abuses and insults people. The Sages of the earlier generations said: Whoever embarrasses a proper Jewish person in public with words does not have a share in the world to come." The posekim spelled out the details of these laws in this context, especially the Maharshal in his Yam shel Shelomo, on our chapter, nos. 41-57. See also Shulchan Arukh and Rema 420:38.

[6] The Rambam seems to imply that if there were witnesses present at the time of the injury, but they did not appear before the court and therefore we must rely on the admission of the person who caused the injury, there is no liability for boshet, for the humiliation was already caused at the time of the injury. According to this, we must examine what the law is in a case where Reuven caused an injury to Shimon in the presence of a large group of people including Levi (a single witness), relatives of Reuven and Shimon (who are disqualifieed to serve as witnesses), and women (they too are disqualified). There is room to say that here too, despite the absence of kosher witnesses, it is not the admission before the court that humiliated the victim. See what we wrote in shiur no. 7 on chapter Ha-Chovel, in the section dealing with the exemption applying to blind person regarding boshet.

[7] In the aformentioned shiur we supported this with the Rambam's ruling that one who intended to kill one person, but killed a different person, is exempt, whereas regarding boshet the Rambam rules that one who intended to humiliate one person, but humiliated a different person, is liable. We suggested there, and now this suggestion finds further support, that the Rambam understood that regarding murder, intent is required as a condition for punishment; in the absence of intent, there is no intentional murder. But regarding boshet, intent is required to define the act as an act of humiliation. Therefore, the Rambam maintains that when a person intends to humiliate a certain person, his action is defined as an act of humiliation, and so he is liable even if in the end he humiliated a different person.

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