Bava Kamma 076

I am studying Mishnah in memory of Yitzḥak Rabin, son of Rosa and Neĥemya.

23:
Before we continue with our explanation of our present mishnah we should note that today's shiur marks an occasion which is both sad and pleasant at the same time. This day fifteen years ago Prime Minister Yitzḥak Rabin was assassinated by a seeming Torah-observant Jew (who is incarcerated in solitary confinement to this day). Just two days later, on the day of the funeral of the prime minister, The Rabin Mishnah Study Group was born and the very first shiur, the beginning of Tractate Kiddushin, was sent out to a handful of participants. Since then we have completed ten more tractates of the Mishnah and at the moment we are well on the way to completing our study of the twelfth tractate. This surely is a cause for pleasure. Although fortuitous, it is an additional pleasure that today's discussion, below, comes from Ed Frankel who, fifteen years ago, was the one who suggested that we study Mishnah in Rabin's memory. In commemoration of the occasion, for today's shiur, I have restored the banner which was included at the head of each shiur until the first Yahrzeit. (The special shiur that I sent out on that occasion is still relevant reading.) Now, let us honour his memory by continuing and concluding the study of our present mishnah.

24:
The last of the five payments for which a malfeasant might be liable is shame; that is for the shame which his action inflicted upon the plaintiff. What constitutes shame, of course, varies from society to society and from age to age. In biblical and mishnaic times, for instance, in Jewish society nudity, which is mentioned in our present mishnah, was unthinkable in any situation: people would undress for bed and dress the next morning while still covered by the bedclothes on their bed. Wherever in our sources nudity is required or supposed it means that the person was inadequately dressed, not completely undressed.

25:
If someone deliberately shames another person they are liable for payment of compensation. If the shaming was inadvertent there is no liability. The legal requirement that the shaming must be intentional is learned from a verse in the Torah:

We should not be alarmed by the last sentence of this quotation. The sages, as is their wont, understood it as referring to compensation: the woman's hand caused shame so she must compensate her victim for the shame it caused. Here is Rashi's explanation of the term used:

26:
It follows that any act which caused shame but was unintentional will not incur liability. However, that might not necessarily mean that other compensations will be foregone. Our mishnah gives the example of someone falling off a roof and thereby hurting someone else who was below and at the same time doing something that caused them shame. Compensation for injuries sustained will nevertheless have to be paid; and, where appropriate, the defendant might also have to compensate for healing, enforced idleness and so forth.

In BK 075 I wrote:

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 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.

Ed Frankel writes:

I am intrigued by your modern attempt to assess damages. I am also interested in what slavery entailed when someone's damages are assessed. Let me clarify. If a whole bodied slave is more useful than one with some physical limitations, then of course the whole bodied slave is more valuable and costly. However, for Jews to discuss the potential selling of fellow Jews into slavery seems strange, as Jews could not purchase Jews except for indenture (eved ivri). So lets assume, probably wrongly, that we are referring to a subgroup of slaves, avadim ivriim. In the case of indenture, could a man be contracted with the idea that he is taken for a specific task? If this is the case, does the damage truly affect the workability of the slave in all instances? After all, with one eye, a slave could still see, even if he is precluded from depth perception. He could work as a scribe or record keeper in ancient times. Currently the absence of an eye would not even prevent a large array of positions that were sight dependent, and thus could the absence of an eye be assessed today as it was in the rabbinic period? Today we do not encounter indentured servitude, but perhaps a professional contract with terms and obligations could be equated on some level to indenture. it is at best a rough equation. The question boils down to how does the change in economic systems affect the assessment of damages if we want to rely on this mishna as a lasting basis for current practice in the twenty-first century and beyond. Or do we have to admit that it will not?

I respond:

This is a very long question but I will need only give a very brief response. Ed writes that "for Jews to discuss the potential selling of fellow Jews into slavery seems strange." Ed has misunderstood the situation. The assessment by the judges is purely academic: if this person were to be sold by non-Jews in the slave market of Caesarea how much would he have fetched previously and how much now? It follows that Ed's subgroup of avadim ivriïm never existed and could never have existed. As to Ed's last sentence, I wholeheartedly agree.