Bava Kamma 073

נושא: BK

BET MIDRASH VIRTUALI

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Pain: if [someone] burns [someone else] with a skewer or a nail – even [just] on his fingernail – some place [on his body] that does not bruise, [the judges] estimate how much a person would be prepared to be paid to undergo such pain.

9:
In the previous shiur we saw that with regards to physical damage the sages tried very hard to make the assessment as objective as possible: every person is of equal worth in the eyes of the law and therefore no account is to be taken of a person's social standing: rich and poor alike are assessed as if they were slaves being sold in the slave market. However, pain is something that is very difficult to assess and it is very subjective.

10:
Our mishnah chooses the example of pain caused by burning, but of course the same rulings would apply regardless of what caused the pain. Being burned on one's cheek by a red hot skewer is much more painful than being burned by that same red hot skewer on one's fingernail, for example. And the assessment is complicated by the fact that one person may feel greater pain than another from the very same infliction.

11:
If we examine the original text of the Torah [Exodus 21:24-25] carefully we will see that it has a particular legal formulation:

Eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, bruise for bruise.

The sages in the Gemara [BK84b-85a] discuss whether the bruise mentioned refers to the marks left by burning or not. Does the term 'wound' separate the connection between burn and bruise or is it just another example of a source of bruising? The question becomes relevant when considering whether pain inflicted without leaving physical damage on the person of the plaintiff also entitles him or her to compensation. The conclusion in the Gemara is that compensation is to be paid even where there is no physical depreciation, but that additional compensation should be imposed for the physical depreciation itself.

12:
The next issue discussed by the sages in the Gemara is how pain is to be assessed. Our mishnah says that the task of the judges is to estimate how much a person would demand to be paid in order to undergo the pain that was inflicted on the plaintiff.

The father of [the Amora] Shemu'el said: We have to estimate how much a man would require to be paid to have his arm cut off

for example. This is a literal understanding of the ruling of the mishnah. The rest of the sages immediately point out the problem with such a ruling:

"To have his arm cut off"!? … Are we dealing with fools [who would consent for any amount to have their arm cut off]?

What person in his right senses would agree to suffer pain and physical depreciation just to make some money? After much discussion the sages determine that what our mishnah really means is that assessment should be made according to how much this particular plaintiff would be prepared to pay in order not to have to suffer the kind of pain that was inflicted. Even so, the Gemara points out that

instead of 'to be paid' should not our mishnah say 'to pay'? Rav Huna the son of Rav Yehoshu'a: It means that payment to the plaintiff will have to be made by the offender to the extent of the amount which the person sentenced would have been prepared to pay [to avoid the pain inflicted].

To be continued.

In BK 070 we wrote:

So, if Sara takes hold of David's ox and starts pulling Goliath out of his stall she has not yet committed a theft. Only if she succeeds in pulling Goliath out of David's premises into the public domain is she guilty of theft. Thus, to use the rather extreme situation which our present mishnah offers as explanation, if Goliath drops down dead before Sara can pull him out of David's premises she is not guilty of theft even though theft was her intention and the reason why she was "pulling" the animal.

Amnon Ron'el writes:

With regards to pulling still in the owner's premises: true there is no theft here yet, but it could happen that Sara and Sam are guilty of causing the death of the animal that they intended to steal. And if the animal was in the public domain anyway and a passer-by comes along (to guide the animal towards a tasty heap of straw or in order to free the passageway) is he considered to be a thief? Today as well we recognise acquisition by 'pulling' – automobiles "slaughter" in the territories yet no one pays…

I respond:

Why should that kindly passer-by be accused of theft? In the scenario described by Amnon the animal is not taken into his possession: it is still in the possession of the owner.

Today, we usually recognise transfer of ownership by a deed of sale or some such legal mechanism. Someone taking a car for a test ride would not constitute theft – unless the car was never returned after the test ride! I am at a loss to understand Amnon's comment about slaughter of automobiles. The car has been stolen: its fate thereafter makes no difference to the fact of the theft.

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