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Week 95 - Wednesday - 19 September 2001

BAVA KAMMA: CHAPTER 8: MISHNAH 1

Whoever wounds his fellow is liable for five things: for damage, for pain, for healing, for loss of time and for shame. For damage, how? If one blinded another's eye, cut off his hand, broke his foot, we consider him as if he were a slave sold in the market, and we appraise, how much he was worth, and how much he is now worth. Pain? If someone burned him with a spit, or with a nail, even on his fingernail, a place where it produces no wound, we assess how much a person in his situation would be willing to accept to undergo such pain. Healing? If one struck another, he is obligated to heal him; if growths appeared on it: if as a result of the blow, he is liable, not as a result of the blow, he is exempt. If it healed and opened again, healed and opened again, he is obligated to cure him. If it healed completely, he is not obligated to cure him. Loss of time? We consider him as if he were the custodian of a cucumber field, since he has already paid him compensation for his hand and compensation for his foot. Shame? Everything is in accordance with the person causing the indignity and the insulted party. If one insults a naked person, if one insults a blind person, or if one insults a sleeping person, he is liable, and if a sleeping person caused the indignity, he is exempt. If one fell from a roof and injured and shamed, he is liable for the injury and is exempt for the shame, as it is written, "And she puts forth her hand, and takes him by the secret parts" (Deut. 25:11); he is not liable for shame unless he intended.

Kehati

Whoever wounds - strikes and wounds - his fellow is liable for five things - which he caused him.

For damage - since he injured him and decreased his value as a result of the wound, as it is written, "Eye for eye" (Ex. 21:24), which by tradition the Sages interpreted as whoever blinds the eye of his fellow pays him for the value of his eye;

For - causing him - pain - as it is written, "wound for wound" (Ex. 21:25). This phrase is seemingly superfluous; the Sages explained that it teaches that compensation must be paid for pain, even in a case where compensation was already paid for injury, e.g., if he cut off a person's hand: even though he pays compensation for the value of his hand, he is not exempt from compensation for pain, since he could have cut off the hand with the use of a drug, which would have caused less pain, but he cut it with a metal tool, and this did cause him pain;

For - the expenses of - healing;

For loss of time - since he sits idle from his work due to his ill health, as it is written, "He shall pay for the loss of his time, and shall cause him to be thoroughly healed" (Ex. 21:19);

And for shame - caused to him, as it is written, "She puts forth her hand, and takes him by the secret parts; then you shall cut off her hand" (Deut. 25:11-12); which was interpreted as referring to the payment of compensation for shame.

If one blinded another's eye, or - cut off his hand, or - broke his foot, we consider him as if he were a slave to be sold in the market, and we appraise how much he was worth - before the injury, and how much he is now worth - now, after he was injured; the difference is paid by the damaging party as compensation for damages.

If he burned him with a spit, or with a nail - which was white-hot, even on his fingernail, a place where it produces no wound - i.e. where there is no damage but only pain, we assess how much a person in his situation - in accordance with his nature and his health, would be willing to accept to undergo such pain - Rabbeinu Asher and Tiferet Yisrael state, in accordance with the Gemara, that the intent of this mishnah is not how much he would want to be compensated to undergo such pain, since he would not be willing to undergo this for any amount of money; the intent is rather, how much he would be willing to have taken from him so that he would not have to undergo such suffering, if he had been sentenced to such pain by the authorities. The mishnah cites a case in which there is pain without damage, but the law is that compensation is paid for pain even when there is damage as well, as has been explained above.

How does he pay for - Healing? If one struck another, he is obligated to heal him - by paying the expenses of his cure, i.e., the doctor's fee and the cost of the medicines.

If growths - blisters - appeared on it: if - the blisters formed - as a result of the blow, he is liable - to heal them; if not as a result of the blow, he is exempt - from paying to heal them.

If the wound - Healed and opened again - i.e. returned to its original state, and again - healed and opened - several times, he is obligated to heal him - to continue to pay the expenses of healing, since the wound has not completely healed. If it healed completely, and later returned, he is not obligated to cure him - since we assume that the wound did not return as a result of the original injury, but was rather due to some other cause.

We consider him as if he were the custodian of a cucumber field - which is easy work, which even someone whose hand or foot had been amputated can do, but now that he is unwell, he cannot do. He therefore pays him the wages of a cucumber field custodian for each day, since he has already paid him compensation for his hand and compensation or his foot - i.e. he does not pay him full compensation for his losses due to not working, since this loss was included in the payment for damages already made to him. The assessing of compensation according to the wages of a cucumber field custodian applies only in the case of an unskilled worker. For a person who does, however, have a craft, at which he could work if not for his ill health, his loss of time is calculated according to the amount he loses by not being able to practice his craft due to ill health (Tosafot).

How does he pay for - Shame? Everything is in accordance with the person causing the indignity and the insulted party - the court assesses the compensation for shame according to the person causing the indignity and the insulted party; if the injuring party is an unimportant person, the shame which he causes is greater than that caused by an important person. The more important the insulted party, the greater is his shame (see our commentary on Mishnah Ket. 3:7).

If one insults a naked person - the Gemara explains, e.g., a wind lifted a person's garment, slightly revealing his nakedness; someone came along and revealed more of his nakedness (Rashi, Rambam). Others interpret this to mean that he spat at or slapped a naked person, since the shame at being spat at or slapped is the same whether a person is naked or clothed (Tosafot);

If one insults a blind person - even though he does not see his shame, he nevertheless feels it; Or if one insults a sleeping person - even though he only felt his shame when he awoke, he is liable - to compensate for shame.

If a sleeping person caused the indignity - while asleep, he is exempt -from paying compensation for shame, since it is not considered shame if intent is lacking.

If one fell from a roof and injured and shamed - a person when falling, he is liable for the injury - even though he did not intend to cause any injury, since man is always mu'ad, and is exempt for the shame - even if he fell in an ordinary wind. As it is written, "And she puts forth her hand, and takes him by the secret parts" - we learn from this that whoever shames his fellow must compensate him for shame, as was cited above; the Sages learned from the phrase "and she puts forth her hand" that - he is not liable for shame unless he intended - to shame. If he intended to cause damage, however, even though he did not intend to cause shame, he is obligated for the shame.

BAVA KAMMA: CHAPTER 8: MISHNAH 2

In this it is more stringent for a man than for an ox, for a man pays injury, pain, healing, loss of time, and shame, and he pays compensation for miscarriage; and the ox pays only for damage, and is exempt from compensation for miscarriage.

Kehati

In this respect - the law for - a man - who causes damage - is more stringent than - the law for - an ox - which causes damage: for a man pays injury, pain, healing, loss of time, and shame - as was explained in the previous mishnah, and he pays compensation for miscarriage - as was explained above (5:4), as it is written, "And if men strive together, and hurt a woman with child, so that her fruit depart, and yet no harm follow [i.e., the woman does not die], he [the striker] shall be surely fined, according as the woman's husband shall lay upon him; and he shall pay as the judges determine" (Ex. 21:22-23).

And the ox pays only for damage - as it is written, "And if a man maim his neighbor" (Lev. 24:19), which was interpreted as meaning specifically a man who maims, but not an ox, which maims his neighbor.

And is exempt from compensation for miscarriage - as it is written, "And if men strive together etc.," which was interpreted to mean only "men," but not oxen.

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