Komentarz do Bawa kamma 8:1

One who wounds his friend is obligated to pay 5 etc: One who embarrasses a naked person, who embarrasses etc...

החובל. וכמה הוא יפה – for if he needed to, he would sell himself as a Hebrew slave. But the one who damages him causes him the loss of this money.

Introduction Chapter eight of Bava Kamma deals with personal injury law. According to Jewish law when a person injures another person he is obligated for five different payments: 1) compensation for the injury itself; 2) compensation for the pain; 3) payment of medical costs; 4) loss of wages; 5) compensation for indignity caused by the injury. Our mishnah teaches how each of these types of compensation are calculated.

When he cuts off his hand or his foot he is obligated in the 5 punishments, but when he does to him 1 of these damages or 2 from these, for example, that he embarrasses him only, he is not obligated except for embarrassment. And similarly if it's only pain he's not obligated except for pain. As is said as an example that he burns him with a skewer on his fingernail and all this one should examine. And if he passes over, the victim, on the words of the doctor, and was added to his illness or another injury happens because of this, the damager is not obligated for any of this new illness, because the patient neglected himself. And know that it is very important principle from the principles of our religion, that you don't collect fines in Babylonia and all the other lands outside of the land of Israel only. Because that he blessed be he said "before the judges" and we do not have judges that heir name is called [true] judges except for judges with ordination in the land of Israel. And this is explained in Sanhedrin. All judges in the world it is as if they stand in the place of judges in the land of Israel, and even so they do not fill their place except in matters of general things people do, in order that they should not lose the rights of people. For example loans, buying, selling, acquiring, admissions, and denials. And when an animal damages with the tooth or the foot that they are accustomed to this, as is explained, and similarly when a person damages an animal. However an animal to a person or a person to a person, and all fines, they do not pay anything, except with the court in the land of Israel, because these are things that from them they don't happen except for a little bit, and from these things you do not lose a lot of money. And it is appropriate to do when someone wounds his friend that it should be evaluated in all that he would be obligated, from time off work, and embarrassment, doctor bills, pain, and the fines, and they should add together everything and the one who wounds will pay at one time and will be absolved, if it was that the court case was in the land of Israel. And if it was outside the land we excommunicate the one who wounds until he gives what he obligated to pay on the basis of mutual agreement or go up with the other person to the land of Israel and when he gives what he is obligated to pay to him we release his excommunication, and even if the one who wounds is not happy with this. It is appropriate to mention here that the half damages that an innocuous ox pays is considered a fine and we do not collect this outside of Israel except according to what is mentioned. However half damages with stones that was mentioned already in the second chapter from this tractate and it is that when rocks shoot out from his [the animals] feet and it breaks vessels he pays half damages from the entire damage [not limited to the value of the animal], that this is law and not fines and we can collect it outside of Israel and only if it was in the domain of the person who was damaged. However in the public domain he is not liable for any damage of the foot as it is explained there. And full damages are not a fine and is collected outside the land of Israel except an ox that is accustomed alone because the idea in our hand there are not 'accustomed' oxen in in Babylonia [because there is no Sanhedrin].

כיוצא בזה – according to what he enjoys, the greatness of his trouble and pain.

He who wounds his fellow is liable to compensate him on five counts: for injury, for pain, for healing, for loss of income and for indignity. Section one lists the five payments for personal injury, as we explained in the introduction. The remainder of the mishnah explains these payments.

צמחין – white pustules.

‘For injury’: How so? If he blinded his fellow’s eye, cut off his hand or broke his foot, [his fellow] is looked upon as if he was a slave to be sold in the market and they assess how much he was worth and how much he is worth. Section two Injury is assessed by evaluating the previous and current worth of the person as a slave. The payment is the difference between the two.

שבת – all the days of the illness, we see him as if he is watchman of cucumbers and provide his salary of each day. For behold he is not fit for another labor even without illness for his hand is cut off or his leg and he has already been given their value.

‘For pain’? If he burned him with a spit or a nail, even though it was on his fingernail, a place where it leaves no wound, they estimate how much money such a man would be willing to take to suffer so. Section three Compensation for pain is assessed by evaluating how much a person would accept in exchange for having such an injury.

הכל לפי המבייש – an unimportant man who was put to shame, his insult is greater.

‘Healing’? If he struck him he is liable to pay the cost of his healing. If sores arise on him on account of the blow, he is liable [for the cost of their healing]. If not on account of the blow, he is not liable. If the wound healed and then opened and healed and then opened, he is liable for the cost of the healing. If it healed completely, he is no longer liable to pay the cost of the healing. Section four The person who inflicted the injury is obligated to pay for whatever the costs of healing may be. If sores or other later complications occur, he will be liable as long as the later complications are a result of the original blow. Finally, the person who inflicted the injury will be liable until the wound completely heals.

והמתבייש – according to his importance is his shame [greater]. And each of these five things are derived from Biblical verses. Damages/נזק, as it is written (Exodus 21:24): “eye for eye” – and that does not mean to say an actual eye, as it is written (Numbers 35:31): “You may not accept a ransom for the life of a murderer.” For the life of a murderer you don’t take a ransom, but you do take a ransom for the heads of his limbs, for if he blinded he eye of his fellow, we give him the value of the eye, and that is “eye for an eye.” Pain/צער – we derive from (Exodus 21:25): “wound for wound.”. For it is an additional verse making him liable for the pain and even in the place of damage. And you should not say, behold he acquired his hand, and he now must cut it off. But we say that he should have cut it off with a drug, and this one severed it with iron and caused him pain. Therefore, he pays for the pain [that he caused]. ריפוי ושבת /healing and idleness/sitting. (Exodus 21:19): “Except that he must pay for his idleness and his cure,” and specifically if the illness comes on account of the wound. But if the hill person was negligent regarding himself and transgressed the words of the physician, the one who did damage is not liable for idleness and healing for we require on account of negligence. בשת/insult or indignity – as it is written (Deuteronomy 25:12): “You shall cut off her hand; [show no pity] – it is money. And the law of the Torah is that one cannot judge aa single law in the world other than judges who are ordained in the Land of Israel, as it is written (Exodus 22:8): “the case of both parties shall come before God.” And they [who judge] are not called "אלהים"/God, other than those who are ordained in the Land of Israel. But loans, business transactions, agreements by which one’s landed estate is mortgaged in the form of a sale from date (independent of he loan to consummated afterwards so that at a certain date the creditor can claim the property, even if sold in the meantime, by referring to the priority of his purchase (i.e., deeds of transfer), admissions and denials, we adjudicate them outside the Land [of Israel] as if they (i.e., the judges) are representatives of the Jewish court of the Land of Israel and their agency we make use of. And this alone in a found matter where there is a [potential] loss of money [and similarly] an animal that damaged with the tooth or the foot and they are forewarned, or if a man caused damage to an animal. But an animal that caused damage to a person, or a person to another person, we don’t judge hem outside the Land [of Israel] at all. Rather, we excommunicate the person who wounds or the one who causes damage, until he go up with his fellow litigant to the Land of Israel or that he will provide, through the path of compromise, something close to what appears in the eyes of the judge. But a limited matter, they don’t render a decision upon. And the same law applies to fines that written in the Torah and in all of them is Talmudic learning: We don’t collect them – the judges of the Diaspora, but rather we excommunicate whomever is liable for them as we have explained.

‘Loss of income’: He is looked upon as a watchman of a cucumber field, since he already gave him compensation for the loss of his hand or foot. Section five loss of income is assessed by evaluating the wage of a person doing the lowest paying job possible, a cucumber patch guard. There is some overlap between this payment and the payment for injury. For instance if the person injured was a blacksmith who earned 100 dollars a month and the injury blinded him, thereby preventing him from continuing in his profession. The payment for the injury will compensate him for this loss. Therefore the payment for the loss of income is compensation only for the loss of ability to do any job, no matter how low paying.

‘Indignity’: All is according to the status of the one that inflicts indignity and the status of the one that suffers indignity. If a man inflicted indignity on a naked man, or a blind man, or a sleeping man, he is [still] liable. If a man fell from the roof and caused injury and inflicted indignity, he is liable for the injury but not for the indignity, as it says, “And she puts forth her hand and grabs him by the private parts”, a man is liable only when he intended [to inflict indignity]. Section six payment for indignity is relative to the person who inflicts the indignity and to the person who incurs it. A person of lower social status will inflict greater indignity and will suffer less indignity. (In Mishnah six of this chapter we will see that Rabbi Akiva disagrees with this idea). For instance, if a poor peasant were to strike the queen, the indignity would be greater, according to the mishnah, than the queen striking a poor peasant. However, the mishnah teaches that indignity payments are applicable even if the person embarrassed is naked (meaning he has brought upon himself indignity) or sleeping (unaware of his indignity) or blind (unable to see his indignity). Finally we learn that a person is obligated to pay for the indignity only if the blow was purposeful. All of the other payments mentioned in the mishnah are obligatory even if the blow was accidental.

Questions for Further Thought:
• Section three states that “even if the injury is on the fingernail”. What is the meaning of this clause? Furthermore, this section states, “such a man”; what is the meaning and import of these words?
• What is the relationship of clause 6a to clause 6c?
• In our society is indignity suffered still relative to the social status of the two parties?