Bava Kamma 078

נושא: BK

BET MIDRASH VIRTUALI

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One who strikes his father or mother without causing a bruise, and one who injures another person on the Day of Atonement, are liable for all [five]. One who injures a Jewish bondman is liable for all except for enforced idleness as long as he is his [servant]. One who injures someone else's non-Jewish servant is liable for all [five]. Rabbi Yehudah says that servants do not have shame.

1:
Our mishnah consists of five statements and we shall examine them each in turn.

2:
Striking a parent is strictly forbidden, of course. In Mishnaic and Talmudic times every Jew was expected to show great respect to a parent and many tales are related concerning the great respect that famous sages showed towards their own parents. We shall now recount a few of these stories [Kiddushin 31a-b] for our own edification.

Rav Ulla was asked to what extent is one required to 'honour one's father and mother'. He replied: Look what a non-Jew from Ashkelon, whose name was Dama ben-Netina, once did when the sages wanted to do business with him to the extent of 600,000 [dinars] but the key [to the safe] was under his father's pillow and he would not disturb him… Once he was dressed in a gold surcoat and was seated among the great ones of Rome when his mother came and tore it off of him and slapped his face and spit on him, but he did not shame her…

Rabbi Abbahu said, my son Avimi honours his parents. Avimi had five sons all of whom were rabbis but when Rabbi Abbahu would come [to his house] he would run to open the door for him crying all the way 'Coming, coming' until he got there. On one occasion [his father] asked him for some water but while he was fetching it his father fell asleep. He stood there with the water until his father awoke…

Whenever Rabbi Tarfon's mother wished to climb up onto her bed he would bend over so she could climb on him; and when she wanted to get down again she would do so [the same way]. Rabbi Tarfon bragged about this in the Bet Midrash but [the sages] told him that he had not yet performed even half of what is required for honouring one's parents…

Whenever Rav Yosef would hear his mother's footsteps he would stand up saying 'I must rise before the approaching Shekhina'.

Rav Assi's mother said to him 'I want jewellery' and he bought for her; 'I want a man' – 'I'll look for one for you'; 'I want a man as handsome as you.' He left her to come to Eretz-Israel and he heard that she was coming after him…

There are many more such stories. It seems that they are mostly concerned with the respect that the sages showed towards aged parents, showing signs of senility.

4:
To return to our mishnah. The Torah [Exodus 21:15] legislates:

He who strikes his father or his mother shall be put to death.

The sages understood this as referring to physical injury, a blow which causes a welt or a bruise. It is for this reason that our present mishnah refers to striking a parent without causing a bruise, because if there had been physical damage it would be considered a capital crime.

5:
One who strikes a parent is liable for all five compensatory payments: injury, pain, medical expenses, enforced idleness and shame. The same applies to someone who strikes someone else on Yom Kippur. There is a general rule of the sages that where a misdemeanor incurs both a flogging and compensatory payment that the payment should be waived in favour of the flogging, but not both punishments. However, in the case under present discussion it was decided that the flogging should be waived in favour of payment.(We discussed the institution of judicial flogging when we studied
Sanhedrin 121 for example.)

To be continued.

In the previous shiur I wrote:

David and Sam are fighting; David intends to land a hefty punch on Sam but Sam's wife, Rachel, gets in the way and the punch lands on her stomach. Rachel is pregnant and subsequently miscarries her child as a result of the accident. Sam claims that it was David's punch that caused his wife to miscarry and sues David. The judges find for the plaintiff – Sam, not Rachel! – and award compensation.

Amnon Ron'el asks what he describes as a rhetorical question:

And if it is the husband who caused the miscarriage, and nowadays often even the death of his wife, who pays compensation and to whom? She is, after all, his property to deal with as he pleases.

I respond:

I must respond to this rhetorical question! A wife is not the property of her husband. What he 'acquires' at the moment of Kiddushin (betrothal) are tutelary rights and duties, not possession. She agrees to be subservient to her husband, as it were, in exchange for his protection and for providing for her needs. (If he does not do so he is, as it were, in breach of contract.) The sages even went so far as to say that even if this is not expressly stipulated in the marriage contract it must be assumed to have been agreed. The husband cannot claim otherwise.

It follows that a wife's person is as sacrosanct as the person of any other person and if he kills her he is guilty of murder. We have noted before that if someone is on trial for a capital offence they do not also pay compensation. So the answer to Amnon's rhetorical question is that no one is compensated but the attacking husband is guilty of a capital offence.

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