Bava Kamma 085

1:
Our present mishnah, the last in this chapter, presents two separate issues. The first issue is simple to understand, the second is a little more complicated. We shall, of course, address the first issue first.

2:
If David insults Sam in some way and thus publicly humiliates him (and some of the ways he could do this were the subject of previous mishnahs) he must pay him recompense if the court finds for Sam against David. However, according to our present mishnah, there is another stage that is required; that stage is asking forgiveness. It is not enough that David pay up he must also express regret to Sam and ask his pardon!

3:
The reason for this requirement is indicated in a barayta [BK 92a]:

In other words, payment of money might be the legally right thing to do, but only a sincere apology can assuage the feeling of humiliation suffered by the plaintiff.

4:
Our mishnah uses a rather strange circumlocution when it says "it is not pardoned him". I think that this implies that two have been offended and two must agree to pardon. Not only did David humiliate Sam but he also sinned against God. He can only hope for God's forgiveness by apologizing to Sam and receiving Sam's forgiveness.

5:
The rabbis attach the duty to apologise to the offended party to a biblical story. Avimelekh, king of the Philistine town of Gerar, appropriates Sarah, Abraham's wife (believing that she is 'only' Abraham's sister). When all the women in the king's harem become barren he is told by God that he must make amends to Abraham by restoring Sarah to her husband [Genesis 20:7].

6:
Our mishnah also states that at this moment the plaintiff must not be cruel but must accept the proffered apology graciously. This is indicated by Abraham's reaction to the restoration of his wife. He does not remonstrate, but instead "Abraham prayed to God who healed Avimelekh, his wife and his handmaidens and they gave birth" [Genesis 20:17].

7:
We now come to the second part of our mishnah, which is dealing with a completely different issue. If, in a fit of rage, Sara orders Sam to cause her physical harm – such as putting out her eye, cutting off her hand, breaking her leg – he may not do so; not even if Sara says that she will absolve him of all responsibility. Just as we may not cause physical harm to another person so may we not cause them physical harm even at their invitation!

8:
However, our mishnah continues rather differently:

Here we are not dealing with physical injury but injury to property. If Sara tells Sam to smash her pitcher he may not do so and if he does she can sue him. However, if she asks him to smash her pitcher and promises that she will not sue him he cannot be sued. The Gemara [BK93a] sees the contradiction between this part of the mishnah and the previous part.

No one in his right mind would forgive anyone who chops off his right hand, so the defendant should know not to accept the promised absolution: it's just words. On the other hand, property is a different matter. Sam can chop down Sara's tree if she asks him to and specifically gives him permission to do so.

9:
The last part of our mishnah introduces a very important principle – one that was only clearly enunciated in western jurisprudence in the Nuremberg trials after World War 2: the malfeasant cannot claim that he acted on 'superior orders'. Let us rewrite the latter part of our mishnah to make it easier to understand:

If David says to Sam, "Go and cut off Sara's hand, [or] chop down Sara's tree – on the understanding that you will be absolved," Sam is nevertheless liable – be it Sara's person or her property.

David had no authority to issue the order or promise absolution and Sam had no right to obey such instructions.

10:
This brings us to the end of chapter 8 of this tractate. God willing, in our next shiur we shall begin our study of chapter 9, the penultimate chapter.