In this lesson, we begin a new chapter in Tractate Bava Kamma - Chapter 8, which is 'Perek HaChovel'. The chapter deals with a person who injures his friend, meaning bodily injury that a person causes to another, as opposed to a person damaging his friend's property or property damaging a person. The foundation of these laws is in the Torah verses - "an eye for an eye", "a wound for a wound" - and the Gemara explains at great length to prove that the obligation is monetary compensation.
The Mishnah begins: "Hachovel bachaveiro chayav alav mishum chamishah devarim" - a person who injures his friend may be liable for five types of payments, which are independent of one another: he may be liable for one of them or he may be liable for all of them, all depending on the nature of the damage. They are:
Nezek - the direct long-term economic impact of the injury on the victim, such as compensation for the loss of his hand.
Tza'ar - compensation for the physical pain caused to him.
Rippui - the medical expenses, medications, and the like.
Shevet - loss of workdays.
Boshet - the emotional suffering and humiliation.
Someone who blinds his friend's eye is liable for all five payments, and we will detail below how each of them is calculated. However, each of them may apply on its own: one who locks his friend in a room, whether intentionally or unintentionally, is liable for compensation for his lost time for the days he was imprisoned, even though there are none of the other damages at all; and someone who spits in his friend's face is liable only for the payment of Boshet, since no physical injury was caused.
"B'nezek keitzad" - how is Nezek evaluated:
"Sima et eino, kittea et yado, shiber et raglo - ro'in oto ke'ilu hu eved nimkar bashuk, veshamin kamah hayah yafeh vechamah hu yafeh" - if he blinded his eye, cut off his hand, or broke his leg - we view him as if he were a slave sold in the market, and we appraise how much he was worth and how much he is worth. These injuries are permanent damage, which reduces the victim's ability to work and his economic output. Therefore, he is treated merely as an economic asset, like a slave sold in the market, and a conceptually simple calculation is made, although its application is difficult: how much he was worth in the slave market prior to the injury, and how much he is worth afterward.
For example: a person who was a concert pianist, and after his hand was cut off was reduced to the status of a high school music teacher. If the value of a concert pianist in the slave market is one hundred thousand, and the value of a music teacher is sixty thousand - the Nezek payments for the loss of the hand will stand at the difference, forty thousand.
Rashi writes - and the Bartenura follows him - that this refers to the amount for which an Eved Ivri (Hebrew slave) would be sold. This is puzzling from two perspectives: first, the concept of a slave "sold in the market" relates more to an Eved Kena'ani (Canaanite slave); and second, an Eved Ivri is sold for only six years, whereas an Eved Kena'ani is acquired forever. Therefore, the Rosh rules that the appraisal is made as an Eved Kena'ani, and this is the simple understanding, despite the words of Rashi and the Bartenura.
Tza'ar:
The second payment is for the physical pain. The language of the Mishnah: "Keva'o beshappud o bemasmer, va'afilu al tzipporno makom she'eino oseh chaburah - omedin kamah adam kayotze bazeh rotzeh litol lihyot mitzta'er kach" - if he burned him with a spit or with a nail, and even on his fingernail, a place where it does not make a wound - we appraise how much a person like this would want to take to suffer such pain. Even if the burn or puncture was done on the fingernail, in a place where there is no wound and no mark is left, we evaluate how much such a person - considering his financial situation, his status, and his level of resilience - would be willing to take to suffer such pain.
The intention is not how much a person would agree to take in exchange for the removal of his eye, since a normal person would answer that the matter is not subject to negotiation at all. The case is similar to a doctor telling a patient that his eye is lost and he must undergo surgery to remove it, and he has no choice but to undergo the procedure. The question is only whether he will pay extra for anesthesia and painkillers, or grit his teeth and suffer. This amount - how much such a person would be willing to pay to undergo the procedure without pain - is the measure of Tza'ar.
Rippui:
"Hikkahu - chayav lerapoto" - The one who caused the injury bears the medical expenses: the cast, medications, doctor visits, and physical therapy. "Alu bo tzemachim, im machamas hamakkah - chayav, shelo machamas hamakkah - patur" - If an infection developed around the wound and its source is the blow itself, the one who caused the injury also pays for the additional treatment; and if the infection does not stem from the blow, he is exempt.
Seemingly, why would an infection develop on the injured party's shoulder if he had not been stabbed there? The answer is that the injured party must follow the doctor's instructions. If he was instructed to apply antibiotic ointment and wash the wound twice a day and he did not do so, or he bandaged the wound improperly and blisters formed - this is not the fault of the one who caused the injury. Only when the one who caused the injury is solely responsible for the development of the infection is he obligated to pay; and if not, we say that the injured party, who did not listen to the doctor's instructions, is the one who caused the infection.
"Chaysah venistarah - chayav lerapoto" - Recovery from an injury is not a linear process: the situation may improve and worsen time and again. As long as the process has not ended, the damager continues to bear the expenses, even if we thought the blow had already healed.
However, "chaysah kol tzorkah" - if the blow healed completely and afterward a new injury occurred, the one who caused the injury is not liable for it, even if the injured party claims that it came as a result of the first injury. For example: Reuven's leg was broken and healed, and afterward he went on a skiing vacation, took a bad fall and was severely injured, and he claims that had it not been for the previous injury that weakened his ankle, this would not have happened. This claim is ineffective, as this is only indirect damage. The damager is liable for the first injury alone, and not for the second at all.
Sheves:
Payments of sheves are the compensation for idle time. The wording of the Mishnah is: "Ro'in oso ke'ilu hu shomer kishu'in, shekvar nasan lo dmei yado udmei raglo" - We evaluate the days of idle time as the wage of a cucumber field watchman, somewhat like a human scarecrow who earns minimum wage, because he has already been paid for the physical depreciation and the loss of the limb that reduced his value.
We have two components here: the pianist who was worth one hundred thousand, and now, as a high school teacher, is worth sixty thousand, received forty thousand as damage payments. However, his value as a teacher is based on him starting to work immediately; and if he was hospitalized for two weeks and cannot work, he receives payment for those two weeks as minimum wage alone, as he has already been compensated for his drop in value in the original damage payments.
Tosafos add an important distinction: a person who engaged in law and earned twenty thousand a month, and his hand was amputated - the value of a lawyer with one hand is identical to the value of one with two hands, and therefore the damage payments do not offset the idle time compensation here. He lost a month of work as a lawyer, and it is impossible to compensate him as a watchman of cucumbers. In such a scenario, the payments of sheves will be calculated according to his wage in law.
Boshes:
Regarding payments of boshes, the Mishnah establishes: "Hakol lefi hamevayesh vehamisbayesh" - Everything depends on the identity of the one who embarrasses and the identity of the one who is embarrassed. For example: one who spits in his friend's face - there is no damage, pain, medical expenses or sheves here, as the spit is wiped away and nothing is caused beyond that, but there is boshes here. Its measure is determined according to the status of the insulted party - the higher his social status, the greater his embarrassment - and according to the status of the one who embarrasses: the lower he is, the more severe the humiliation. Beis Din must assess the scope of the boshes, and even distinguish between a spitting that no one knows about and a spitting that everyone knows about.
The Mishnah teaches that even one who embarrasses a naked person, a blind person, or a sleeping person is liable for payments of boshes, even though the amount may be smaller:
The naked person: This is not speaking of someone who walks around naked all day, for he has no self-respect and there are no payments of boshes for him. It is speaking of someone who is already in a humiliating situation - such as a woman whose skirt was blown up by the wind - and another comes and adds to her embarrassment: he tore her garment, lifted it higher, or spit in her face. Even though she is embarrassed regardless, one who adds to her embarrassment is even more severe.
The blind person: Even though he does not see the faces of those surrounding him, he hears and feels, and therefore he too is entitled to payments of boshes.
The sleeping person: During his sleep he is not embarrassed, but once he wakes up and understands what happened to him, he is embarrassed. And there is a discussion in the Gemara about the law if he never woke up, such as if he died in his sleep: the simple understanding is that there are no payments of boshes here, and the heirs do not collect them, for he was never embarrassed and never knew of the matter.
In contrast, "veyashen shebiyesh - patur" - and a sleeping person who causes embarrassment is exempt: If two people are sleeping in one bed, Reuven rolls over onto Shimon's nightgown, Shimon falls from the bed and his clothing is torn off him - Reuven is exempt from all embarrassment payments. Even though a person is always considered fully responsible for his actions, embarrassment is different: there is no liability for embarrassment unless there is an intent to cause harm, and in the absence of intent, he is exempt.
This principle is learned from the verses dealing with two men fighting each other: "When men strive together, a man and his brother" (we must remember this phrase "a man and his brother", and we will return to it later), "and the wife of one draws near to deliver her husband out of the hand of him that strikes him" - the wife of one of them comes to save her husband from the one striking him - "and puts forth her hand and grabs him by his secrets... you shall cut off her hand." The Torah uses the term "mevushav", an expression of embarrassment, instead of a more direct and simple term, to teach us that there is no liability for embarrassment unless there is an intent to cause harm, like that woman who puts forth her hand.
Three levels of intent:
From this emerges that there are three levels of intent, which determine which of the five payments the damager is liable for:
Complete accident: A person is always forewarned and is always responsible for his actions. Even if a tornado lifted Reuven and dropped him onto Shimon, Reuven is liable for his damage, and it makes no difference that it was entirely beyond his control. In a complete accident, he pays for the damage alone.
Partial negligence: If the wind dropped him in a way where he should have anticipated that this could happen - this is not a complete accident, and there is a certain element of negligence on his part. Therefore, he is also liable for the payments for pain and lost work.
Intentional harm: The liability for embarrassment is only when he intended to damage and cause harm to his fellow; and in the absence of such intent, he is completely exempt from embarrassment.
And this is what the Mishnah says: "Nafal min hagag vehizik uviyesh - chayav al hanezek ufatur al haboshet, shene'emar: 'Veshalchah yadah vehechezikah bimevushav'" - if one fell from the roof and caused damage and embarrassment, he is liable for the damage and exempt from the embarrassment, as it is stated: 'And she puts forth her hand and grabs him by his secrets'. One who falls from the roof and damages and embarrasses the person he fell upon, pays for the physical damage - if the other's eye was blinded and the like - but he does not pay for the embarrassment, since there was no intent here. A person is not liable for embarrassment payments unless he intended to cause harm to his fellow, like that woman who grabbed his secrets.
In practical Halachah:
To judge these complex monetary laws requires ordained judges in the Land of Israel, who hold the tradition dating back to Moshe Rabbeinu. This ordination is no longer in our hands, and therefore, on a Torah level, there is no possibility today to judge these cases. However, the Sages permitted those who are not ordained, even outside the Land of Israel, to judge common monetary cases, but bodily injuries of this type are not common and no authorization was given for them. For this reason, our courts do not make these assessments: we might judge cases of lost work and healing, but we do not deal at all with calculations of pain, embarrassment, and damage.
How, then, does the matter proceed in practice? If Reuven struck Shimon and blackened his eye or broke his nose, the court will say to him: If you do not appease the injured party and reach an agreement with him that will satisfy and compensate him - we will excommunicate you and place you under a ban. Then the injurer will say: Here, I am giving you such and such an amount, and we will be friends again. Once they have agreed on the payment, the injured party receives his compensation, Reuven is saved from excommunication, and peace is restored. And if the injured party requests an exaggerated amount and says he will not be appeased for less - the court will reply to him that this is not how things are done.
Thus, we find that there is court involvement here, except that it is done through a mechanism of appeasement and mutual agreement between the parties, and not by forcing a fixed payment based on the calculations of the court.