Bava Kamma 072

1:
The first mishnah of Chapter 8 is very long, so I have divided it up into parts, more or less according to the division of this mishnah in the Talmud.

2:
So far in our study of Tractate Bava Kamma we have covered various kinds of damage that someone can sustain and for which he or she is entitled to recompense through the courts. We have learned of damage to property and person caused by one's property (ox, pit and so forth). We have also learned of damage to property that one human being can do to another (arson, theft and so forth). In our present mishnah we turn to damage that one person can do to another person: physical harm.

3:
The sages established that a person who has sustained injury at the hands of another person may be entitled to five different kinds of recompense. It is the judges who will decide how many of these compensations apply in any given case and also to what extent they apply. The five categories of compensation for physical harm are, as the first clause of our present mishnah states: damage, pain, healing, rest and shame.

4:
'Damage' refers to the physical injury itself, mayhem. 'Pain' refers to the suffering that the injured party endures because of the injury inflicted. 'Healing' refers, of course, to medical costs. 'Rest' refers to time that the injured party has to spend idle, as it were, because he is not able to go about his usual business. 'Shame' refers to the sense of disgrace suffered by the injured party because of what was done to him.

5:
The Gemara [BK 83b] begins the discussion on the category of 'damage' with a most pertinent question: 'Why?' In other words, why should compensation be payable for physical damage? Does this not run directly counter to a major provision of the Torah?

How often we have heard the claim that Torah law is cruel because of this provision, referred to by the medieval ecclesiastics of the Church as lex talionis. The church fathers understood the law of the Torah as doing to the culprit exactly what he did to the victim. This understanding goes contrary to everything we have learned so far about Torah jurisprudence in matters of damages. For the lex talionis is not about damage but punishment.

6:
Again and again in our study of Tractate Bava Kamma we have seen that what is of concern is not how to punish the malfeasant but how he is to recompense the one who suffered the damage. Even the thief, as we have seen, is not punished for his theft: he is required to repay it – with 'interest' as it were – to the person from whom he stole. So, in the case of mayhem too, the concern of Jewish jurisprudence is not punishment of the malfeasant but how he must recompense his victim for the damage sustained. Removing an eye, cutting of a hand, pulling out a tooth will in no way bring recompense to the victim – except possibly a misplaced sense of revenge.

7:
But the problem of how much money must be paid in compensation is a real one. In western jurisprudence such matters are left to the discretion of the judge. This is inevitably very subjective. And often, the amount of compensation decreed is not so much to compensate the victim but rather to punish the malfeasant through his bank account.

8:
To us, today, the method outlined in our present mishnah seems antiquated; and it is indeed antiquated. But it did yield more or less exact assessments of the actual physical damage sustained: how much would a buyer have to pay for this man, unharmed, if he were sold in the local slave market; and how much would he be worth in that same market now that he has lost his left arm, the sight of his right eye, the use of his foot and so forth. The difference in monetary terms is the amount of damages due. Perhaps, in modern terms, the judges would be required to assess earning capacity before and after in the same job.

To be continued.

Alan Marcus writes:

In your most recent shiur [BK071], you taught (unless I misunderstood something) that it was prohibited to keep goats and sheep in Eretz Yisrael. Does this not create a practical problem in terms of the sacrifices, especially those mandated for Yom Kippur?

I respond:

During Sukkot a most welcome guest in my Sukkah was my son, who lives in a 'semi-rural semi-urban' settlement here in Israel. He happened to mention that one of his neighbours had bought some goats. Since the settlement is very religious I immediately pointed out the problem that Alan has raised. My son replied that the goats were kept in a pen so that they could not roam around freely causing damage. This must of necessity be the situation envisaged by the sages. The prohibition against keeping goats in Eretz-Israel refers to allowing them to roam freely; it is permitted to keep them if they are kept in a pen. (In that same mishnah one is permitted to keep a wild dog provided it is kept on a leash.)

The issue about the Bet Mikdash and Yom Kippur and all the other sacrifices in which the slaughter of goats is mandated (such as Rosh Ḥodesh) is really a non-starter. In so many matters the Bet Mikdash was entirely different from the rest of the Jewish world in halakhic matters. For example, it was permitted to use fire (on the altar) on Shabbat; the carcasses loaded onto the altar on Shabbat would inevitably roast there – and there are many other examples.

I hope this helps clarify this matter.