Bava Kamma 075

נושא: BK

BET MIDRASH VIRTUALI

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Rest: [The judges] view [the plaintiff] as if he was the guard of a patch of squash, because [the defendant] has already given him the value of his hand and the value of his foot.

17:
When someone has suffered injury and the hands of someone else it is more than possible that they will not be able to earn their keep as they usually do because of the medical treatment that they must undergo, because of the period of rest and recuperation that they need or because the injury they sustained now prevents them from fulfilling their usual tasks. This period is termed by our mishnah shevet. We have rendered this term as 'rest' though what it really indicates is enforced idleness.

18:
Our mishnah states that compensation for enforced idleness must be assessed by the judges at the level of the simplest of workers. This means that the executive director of a multi-billion dollar corporation would receive as compensation for enforced idleness as a result of the injury sustained no more than the wage of "the guard of a patch of squash", or cucumbers. Not only does this seems unfair to us but the inequity involved is also raised by the Gemara [BK85b]:

The sages taught [in a barayta]: "[The judges] view [the plaintiff] as if he was the guard of a patch of squash." You might say that the demands of equity suffer thereby, since when he was well he would surely not necessarily have worked for the wages of a watchman of squash patches but might have carried buckets of water and been paid accordingly, or have acted as a messenger and been paid accordingly. But in truth the requirements of justice do not suffer, for he has already been paid for the value of his hand or for the value of his leg.

The sages explain the reasoning of the mishnah as follows: when the judges assessed the amount of compensation that the plaintiff should receive from the defendant for the injury that he inflicted upon him his loss of income was already taken into account, and it would be unfair to demand of the defendant double payment.

19:
To explain the previous reasoning let us remind ourselves of what we learned concerning the indemnification for injury sustained [BK 072]: the judges must assess

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.

20:
However, all that we have said thus far is concerned with permanent and incurable damage inflicted: in other words, the person's earning capacity has been changed for ever. But usually injury only involves temporary incapacity. This point too is raised in the Gemara:

Rabbah asked: What would be the law regarding Rest that renders the injured person of less value [temporarily]? … For instance, where [the defendant] struck [the plaintiff] on his arm and the arm was broken but will ultimately recover fully… [Shall we say that] since [the plaintiff] will eventually make a complete recovery [the defendant] need not [have to] pay him [the value of his arm]? Or perhaps [rather should we not say that] since for the time being his earning capacity is diminished [he should compensate him]?

21:
Rabbah, who raised this question, had a son Rava and a nephew, Abbayé. (Abayé's father died during his wife's pregnancy and his mother died giving birth to him, so he was brought up by his uncle. Thus, even though strictly speaking Abbayé and Rava were cousins they related to each other as if they were siblings. It is axiomatic in Talmud studies that, as is usual with siblings, Abbayé and Rava disagreed about almost every halakhic issue they ever discussed!) The Gemara [BK86a] continues:

This issue, which was problematic for Rabbah, was quite clear to Abbayé (taking one view) and to Rava (taking the opposite view): If [the defendant] struck [the plaintiff] on his arm and the arm was broken but so that it would ultimately recover completely, Abbayé says that he must pay for general loss of time and also for particular loss of time; whereas Rava says that he will not have to pay him anything but for the amount of the loss of time for each day [until full recovery].

Abbayé holds that compensation should be paid for loss of income for both any permanent incapacity inflicted and also for temporary loss of income. Rava holds that the defendant must indemnify the plaintiff only for loss of income incurred during the period of recovery.

22:
Rambam, in his encyclopedic Mishneh Torah [Ḥovel 2:11] summarizes:

How should enforced idleness be assessed where no limb was lost but [the plaintiff] became ill and took to his bed, or where his hand was hurt but will eventually recover? [The defendant] must indemnify him for his enforced idleness every day [that he is thus incapacitated] at the rate of a worker in that calling. If [the defendant] caused the loss of a limb or cut off [the plaintiff's] hand he must compensate him for the loss of his hand (this is 'injury' money) and for 'enforced idleness' we view him as if he were the guard of a cucumber patch and see how much the guard of a cucumber patch would earn per day and thus calculate [the amount] for all the days of his incapacitation.

To be continued.

In BK 071 we learned about the prohibition of keeping goats in Eretz-Israel and this produced discussion. Reuven Artzi now writes:

Israel's foresters have demonstrated the efficacy of goats in preventing forest fires. The goat climbs high up in order to enjoy the foliage, especially of coniferous trees. Fires begin at ground level and if the foliage were near the flames on the ground the cones would immediately catch fire. Of course, if the fire gets out of control even the goats cannot be of avail.

I respond:

I presume that what Reuven means is that by devouring the coniferous foliage and stripping the tree bare the goats reduce the amount of material on which the flames could burn.

The topic concerning goats is now closed.

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