Bava Kamma 84a — the Talmud in English

Minor

[a dwarf]

who killed an adult, and an adult who killed a minor,

are not equal. And

how do we kill him,

for

the Torah said:

[Leviticus 24:22]

“One judgment shall be for you”—

a judgment equal for all of you!?

Rather,

you are compelled to say: We do not follow “adult” and “minor” with regard to the body; rather, we say:

A life he took from him—the Merciful One said that a life

that

we should take from him,

as it is stated [Exodus 21:23]: “You shall give a life for a life.”

So too

we say with regard to “an eye for an eye”:

The light he took from him—the Merciful One said that we should take light from him,

and there is no proof from here to say: “An eye for an eye”—monetary payment.

b.

It was taught in another

[another beraita]:

Rabbi Shimon ben Yohai says: “An eye for an eye”—

monetary payment.

And do not wonder and say:

You say monetary payment;

from where do you know this!?

Or

[perhaps]

is it not actually an eye!?

For you say on your own:

If it were the case that

the one who injured

were blind, and he blinded

his fellow’s eye; if it were the case that the one who injured

were without a hand,

[with his hand]

and cut off

his fellow’s hand; if it were the case that he were

lame

[in his leg],

and made

his fellow lame,

how

do I fulfill in

this case

“an eye for an eye”!?

Rather, you are compelled to say: “An eye for an eye”— \-

monetary payment.

And if you say: “An eye for an eye” is actually meant, whenever it is possible to blind his eye, but one who is blind and blinded another pays monetary compensation—

This also cannot be said, because according to your words, the judgment of the one who injured changes from person to person,

and

yet

the Torah said: “One judgment shall be for you”—

a judgment equal for all of you.

And you are compelled to say: “An eye for an eye” means monetary payment, in every person.

They said

[the members of the academy asked]:

And what difficulty

is this!?

Perhaps

“an eye for an eye” is actually meant, and

where it is possible

to fulfill the verse according to its plain meaning,

it is possible,

and they blind his eye; but

where it is not possible

to blind his eye,

it is not possible, and we exempt him

entirely!?

a. One who kills a tereifa [for example, a person whose esophagus or brain membrane has been pierced] is exempt from execution, because the murdered person is a “dead man” [regarded as dead], and it is impossible to impose liability for killing him.

b. “Testimony that you cannot make subject to a conspiracy”—that is, any testimony in which it is impossible to refute the witnesses and punish them—is not testimony.

c. A tereifa who killed in the presence of witnesses is not sentenced to death, because the testimony of these witnesses is “testimony that you cannot make subject to a conspiracy.” For if you accept the testimony in order to kill the murderer, who is a tereifa, and afterward the witnesses are refuted, we would not kill the witnesses, because of “you shall do to him as he schemed to do to his brother” [Deuteronomy 19:19], since they schemed only to kill a “dead man.”

And since it is impossible to punish the witnesses if their testimony is refuted, it follows that from the outset it is impossible to accept their testimony, and it is found that a tereifa who killed is exempt.

For if you do not say so

[where it is not possible, it is not possible], and you say: It is impossible to exempt him entirely, and with regard to injury—

how will your reasoning work with regard to killing, in the case of a person,

“a tereifa who killed an intact person,”

for the Torah said [Exodus 21:12]: “One who strikes a man and he dies shall surely be put to death,” but it is impossible to kill the tereifa, because he is a “dead man,” and the testimony that testifies against him is “testimony that you cannot make subject to a conspiracy,” and is not testimony? And

what shall we do with him!? b. It may be asked: Since it is “testimony that you cannot make subject to a conspiracy,” it is not called testimony, and we say that perhaps he truly did not kill. If so, what is the difficulty? “One judgment” is properly fulfilled with every murderer whom the court judges for his killing, while a tereifa who is not killed is so because there is no testimony that he killed. And perhaps he truly did not kill; if so, there is no contradiction here to what the Torah said, “One judgment shall be for you,” and once again there is no necessity to say, “Where it is not possible, it is not possible”! Based on Rabbi Akiva Eiger. Apparently, this is a difficulty only if we say that the disqualification of “testimony that you cannot make subject to a conspiracy” is because of “concern that he is lying”—that is, we are concerned that perhaps the witness is not speaking truthfully. But if the disqualification is merely a scriptural decree, there is no difficulty, because there is testimony here, but we do not judge on its basis, and “one judgment” is not fulfilled here. Apparently it is obvious that the disqualification of testimony that cannot be made subject to a conspiracy applies also to Moses and Aaron, even though they are not suspected of lying [see Bava Batra 159a]. If so, you are compelled to say that it is a scriptural decree, and Rabbi Akiva Eiger’s difficulty is resolved—Hazut Kasha. [Apparently, this inquiry may be made dependent on the dispute between the Sages and Somchos above, 75b, as to whether, when the defendant admits the witnesses’ words, it is considered testimony that cannot be made subject to a conspiracy, since “concern that he is lying” does not apply [according to Somchos], or whether it is a scriptural decree disqualifying it in every case [according to the Sages]—see Or Sameah, Testimony 20:8, s.v. amnam, and Kovetz Shiurim, Ketubot, paragraphs 112.] However, it appears that there is room for this difficulty even if we say that it is a scriptural decree disqualifying testimony when it cannot be made subject to a conspiracy, since in the end there is no “testimony” here on which the court is required to judge, and it is found

that in every testimony accepted by the court the judgment equal for all is fulfilled. The Hazon Ish [in Likkutim] wrote to answer Rabbi Akiva Eiger’s difficulty: Since even if he killed, he would be exempt, it is found that the judgment is not fulfilled with a tereifa who killed outside the presence of the court; and the “one judgment” that is required means that the afflictions received by the sinful soul will be equal in every person, and it is insufficient that the “intellectual conception of the judgment” be one. c. In Kovetz Shiurim [part 2, section 39], he brought the words of Maimonides [Monetary Damages 10:7], that a tereifa who killed is exempt because he is considered dead. And he wondered: In Sanhedrin 78a they said that a tereifa who killed is exempt because it is impossible to refute the witnesses, as stated above!? Rather, Maimonides’ source is our passage, which asked, “A tereifa who killed an intact person—what shall we do with him?” That is, it is written concerning a murderer, “a life for a life,” but a tereifa has no “life,” and it is impossible to fulfill the verse with him; therefore he is exempt from punishment. [And the reason they kill a tereifa who killed in the presence of the court is not punishment for his killing, but because it is a mitzva to eradicate evil from the world.] Something similar was cited in the Likkutim of Rabbi Akiva Eiger from a work entitled Great Difficulties. d. As for why the Gemara does not raise the difficulty from monetary payment—if he has no money, what shall we do with him?—in any event the liability rests upon him, and when he has money he will pay. But a blind person and the like are permanently exempt—Hidushei HaRim.

Rather,

you are compelled to say:

Where it is possible

to fulfill the law of the Torah—

it is possible,

but

where it is not possible—

it is not possible, and we exempt him

entirely.

And so too, in the case of one who is blind and blinded another, we exempt him entirely, and there is no proof from here to say: “An eye for an eye” means monetary payment.

c.

In the school of Rabbi Yishmael it was taught

[in the beit-midrash of Rabbi Yishmael they taught a beraita]: “An eye for an eye”— \-

monetary payment, because

the verse says

[Leviticus 24:20]: “As he gave a blemish to a person,

so shall it be given to him,” and the

“giving”

stated here is not the giving of a blemish

but monetary payment.

And we object:

But from now on,

if it is as you say, that “giving” means the giving of money, then what the Torah said at the beginning of the verse:

“As he gives a blemish to a person,” is that also

the giving of

money!?

Surely it is obvious that the expression “giving” at the beginning is interpreted as injury; if so, the “giving” at the end should also be interpreted this way, and from where do we know to interpret it as the giving of money!?

They said

[the members of the academy explained]:

The school of Rabbi Yishmael

did not derive it from the meaning of the expression “giving,” but rather

they expound an extra verse

[they learned this interpretation from the redundancy of the verse].

For

since

[after all]

it is written

[there, verse 19]:

“And if a man gives a blemish to his fellow, as he did, so shall it be done to him,”

and from here we learn the punishment of one who injures his fellow.

“So shall it be given to him,”

which is stated in the following verse,

why do I need it,

and what does it teach us!?

Infer from it

that the “giving” stated here is not the giving of a blemish, but a liability of

money

that the judges impose upon him. b. Meshekh Hokhma asked: Why did the Torah not write the liability as applying to the person himself, as it writes concerning an animal, “he shall pay it,” which is a liability upon the person to pay from what he possesses? So too, he should be liable to pay for the injury he inflicted upon his fellow!? He answered: This is an explicit proof of Maimonides’ position that one does not pay damages if he admits without witnesses, and pays only if there are witnesses that the injured person emerged from his house. Since payment is not imposed upon him through his admission before the court without witnesses, payment is not imposed upon him; rather, it is incumbent upon the court to collect it from him through the witnesses. Therefore it says, “so shall it be given to him,” and so on: the Merciful One warned only the court.

. And we object: If you expound an extra verse, why do I need the beginning of the verse,

“As he gives a blemish to a person,”

and what does it come to teach us!?

And we answer:

Since

[because]

it was necessary to write

the end,

“so shall it be given to him,”

in order to derive from it monetary payment,

it also wrote, “as he gives a blemish to a person.”

d.

In the school of Rabbi Hiyya it was taught

[in the beit-midrash of Rabbi Hiyya they taught a beraita]:

The verse says

with regard to a conspiring witness: “You shall do to him as he schemed to do to his brother,” and so on, “and your eye shall not pity,” and so on, “an eye for an eye, a tooth for a tooth, a hand for a hand, a foot for a foot.” [Deuteronomy 19:19, 21]

And we expound:

“Hand for hand”

means

something transferred from hand to hand; and what is it?—

money.

That is, the fact that the verse changed and did not say “a hand for a hand” comes to teach us that he should give him money, which is something transferred from hand to hand. And just as with a conspiring witness “an eye for an eye” means monetary payment, so too, with one who injures, “an eye for an eye” means monetary payment.

And we wonder:

But from now on,

if it is as you say, that “hand for hand” is a change of expression and comes for an exposition,

“foot for foot”

which the verse stated

is also so

—that is, did this change also come for an exposition!?

They said

[the members of the academy explained]:

The school of Rabbi Hiyya expounds an extra verse,

that is, they did not learn it merely from the meaning of the expression, but from the redundancy of the wording of the verse.

For

since

[after all]

it is written

above it

“You shall do to him as he schemed to do to his brother,”

which teaches that he is punished with the same punishment that he schemed to cause the one about whom he testified.

And

if it enters your mind

that “an eye for an eye” means actual, and “hand for hand”

actual, why do I need “hand for hand,”

for what would the verse have lacked? It is obvious that if he testified that his hand should be cut off and was refuted, his hand would be cut off!?

Rather, is it not so that

you can infer

that the verse comes for an exposition, to teach us something transferred from hand to hand—and what is it?—

money.

And we wonder: Still,

why do I need “foot for foot,”

and what does the verse come to teach us!?

And we answer:

Since “hand for hand” was written

for an exposition,

it also wrote “foot for foot.”

The Gemara now brings several expositions of amoraim that “an eye for an eye” means monetary payment.

a.

Abaye says: It is derived

—that is, a source should be brought that “an eye for an eye” means monetary payment—

from

that which

was taught in the school of Hezekiah.

For the school of Hezekiah taught:

It is written [Exodus 21:23–24]: “You shall give a life for a life, an eye for an eye.” And we expound:

An eye

alone

for an eye. A life

alone

for a life, and not

a life and an eye for an eye,

that is, one should not judge to punish him in a manner in which it is possible that you will take both his eye and his life in place of the eye that he injured.

And if it enters your mind

that “an eye for an eye”

is actual,

then

sometimes you find

[it possible that at times it will happen] that you take from him

an eye and a life for an eye.

And how is this possible? In a situation

where, while he blinds him

[while the court’s agent is blinding his eye],

his soul departs

[his soul leaves him and he dies].

And we wonder: What proof is this,

and what difficulty is there!?

Perhaps

“an eye for an eye” is actually meant, but

we assess him

at the outset:

if

we assess him

as able to endure

[if we assess him as able to endure] the injury to the eye without dying,

we do it

and blind his eye.

But if he is unable to endure it,

and there is concern that he will die while they blind his eye—

we do not do it

and he is entirely exempt.

And if we assess him as able to endure

the injury without dying,

and we do it to him

[we blinded his eye],

and

even so

his breath departs

during the injury,

if he dies, let him die,

and one should not refrain because of this concern.

One who has become liable for lashes is assessed as to whether he can receive the thirty-nine lashes imposed upon him by the Torah; if not, they reduce the number according to his strength, for if they strike a weak person with a great blow, perhaps he will die from it, whereas he was liable not for death but for lashes.

Did we

[perhaps]

not learn

in the Mishna with regard

to lashes

that we do not fear death if we assessed him and he will not die: One who became liable for lashes and

they assessed him

as able to receive them without dying,

and he died under his hand

of the court agent who was lashing him,

is exempt

from exile and is not judged as an inadvertent murderer, since from the outset we assessed that the lashes would not kill him.

The same is true here: “an eye for an eye” means literally, and we assess him initially so that he will not die; there is no concern that perhaps he will die.

b.

Rav Zevid said in the name of Rabba:

It can be learned that “an eye for an eye” means monetary payment from the fact that

the verse says [Exodus 21:25]: “

(Исход 21:25): «

a wound for a wound,”

and this verse is expounded [below, 85a] to obligate

giving

payment for

“pain” in place of

the fact that there is also

“damage.”

And if it enters your mind: “

an eye for an eye” means

literally,

why is he obligated to pay for the pain? For

just as

[in the same way as]

this one

[the injured party]

has pain

when he injured him,

this one

[the injurer]

also has pain

when we injure him!?

It follows that the injurer receives pain in place of pain through the very fact that they injure him, so why should we impose upon him a separate obligation for the injured party’s pain!?

Rather, it is necessarily so: “an eye for an eye” means monetary payment, and they do not injure him and remove his eye. And the payment for the damage does not include the “pain”; therefore the Torah obligated payment for the pain, in addition to what he pays in any event for the damage.

And we reject this:

And what difficulty

is this!?

Perhaps

one may say: “an eye for an eye” indeed means literally, and if the injurer’s pain is equal to the injured party’s pain, then indeed we do not obligate him separately for the pain.

But, after all,

there is a person who is pampered

[there is a person who is pampered and delicate]

and has more pain

[a greater amount],

and there is a person who is not pampered

and

does not have pain

so much.

If so, one may say: what the verse increased, payments for pain in place of damage, applies when the injured party’s pain is greater than the injurer’s pain.

What practical difference is there? To give him that which is between them

[that the injurer should pay for the difference between his pain and the injured party’s pain].

c.

Rav Pappa said in the name of Rava:

It can be learned that “an eye for an eye” means monetary payment from the fact that

the verse says [Exodus 21:19]:

(Исход 21:19):

“And he shall surely heal him,”

and this verse is expounded [below, 84b] to obligate

giving

payment for

medical treatment in place of damage.

And if it enters your mind: “

an eye for an eye” means

literally,

why is he obligated to pay for the injured party’s medical treatment!?

After all,

just as this one needs a physician

[just as the injured party needs a physician],

this one

[the injurer]

also needs a physician

when we injure him!?

And since the injurer must pay for his own medical treatment, it follows that he already pays medical expenses in place of the injured party’s medical treatment; so why should we obligate him to make an additional payment for this!?

Rather, it is necessarily so: “an eye for an eye” means monetary payment, and they do not remove the injurer’s eye in exchange for the injured party’s eye; rather, he pays him money. Therefore he is obligated to add payment for the injured party’s medical treatment.

And we reject this:

And what difficulty,

and is this proof!?

Perhaps

one may say: “an eye for an eye” indeed means literally, and if the medical treatments of the injurer and the injured party are equal, then indeed he does not pay separately for the injured party’s medical treatment, since he spends money on his own medical treatment.

But, after all,

there is

a person

whose flesh heals quickly

[there is a person whose flesh forms a scab and heals quickly],

and there is one whose flesh does not heal quickly.

If so, one may say: the verse came to obligate payments for medical treatment in place of damage only when the injured party’s medical treatment is prolonged and more expensive than the injurer’s medical treatment.

What practical difference is there? To give him that which is between them

[the injurer must pay the injured party the difference in expenses].

d.

Rav Ashi said: “An eye for an eye” means monetary payment;

“an eye for an eye” means monetary payment.

it is derived

[it is brought and learned] through a gzeira shava,

“in place of”—

“in place of” from an ox:

it is written here

with regard to the damages of a person who injured his fellow,

“an eye in place of an eye,” and it is written there

[Exodus 21:36], regarding an ox that gored and killed an ox:

“He shall surely pay, an ox in place of an ox.”

Just as there

with an ox that gored,

money

is what he pays,

so here too

with a person who injured, he pays

money.

And we challenge:

What did you see that you learned

[from where do you know to learn] a gzeira shava,

“in place of”—

“in place of” from an ox

to obligate him monetarily?

Let us learn a gzeira shava,

gzera shava,

“in place of”—

“in place of” from a person, as it is written

[there, 23]:

“And you shall give

it

a life in place of a life.”

And it is said:

Just as there

the one who killed a person, “a life in place of a life,”

literally,

because they kill him in place of the life of the murdered person,

so here too “

an eye in place of an eye” means

literally!?

The members of the academy said

[they answered]:

We reason

and learn through a gzeira shava a law concerning

damages from

a law concerning

damages

that are alike,

but we do not reason

a law concerning

damages

in the case of one who injures his fellow

from death

of a murderer.

Therefore, one should learn “an eye in place of an eye” from “an ox in place of an ox”—to pay money—and not from “a life in place of a life”—literally.

And we challenge: after all,

on the contrary,

if you have come to compare them with one another, one should say:

We reason from a person concerning a person

[even though this is injury and that is murder],

and we do not reason from a person concerning an animal.

Rather, Rav Ashi said: the gzeira shava “in place of”—“in place of”

gzera shava of “in place of”—“in place of”

from “in place of which he afflicted”

[Deuteronomy 22:29]

derives it:

just as there the payment is monetary, so too “an eye in place of an eye” means monetary payment; and there they are entirely alike:

a person from a person and damages from damages.

Now the Gemara returns to discuss the actual law that “an eye in place of an eye” means monetary payment.

It was taught

in a beraita:

Rabbi Eliezer says: “An eye in place of an eye”—

literally.

And we wonder: does it enter your mind that “an eye in place of an eye”

literally

is Rabbi Eliezer’s view!?

Does

Rabbi Eliezer not hold “an eye in place of an eye” means monetary payment

“an eye for an eye” means monetary payment

like all these tannaim

above!?

He said

[explained]

Rabba:

Rabbi Eliezer indeed also holds that “an eye in place of an eye” means monetary payment; and what he says, “an eye in place of an eye” means literally, means

to say that it is not assessed as a slave

as the tanna of our Mishna said.

And what Rabbi Eliezer says, “literally,” means “as it is,” and it is not assessed “as though” he were a slave.

Abaye said

[asked]

to him, to Rabba:

If it is not assessed as a slave,

but as whom

shall we assess it? If you say:

as a free person

we assess it,

does a free person

[indeed]

have a monetary value,

and how is it possible to assess him as a free person!?

Rather, he said

[explained]

Rav Ashi: to say that it is not assessed

[the payment]

according to the injured party,

meaning: how much was he worth before he injured him and how much is he worth now, and he should pay him the difference between them.

Rather, according to the

eye of the

injurer

the assessment is made: how much he is worth to be sold now, and how much he is worth without an eye. And this is what he says, “literally”: the injurer’s eye is assessed in place of the injured party’s eye.

That donkey which cut off the hand of a child came before

Rav Pappa bar Shmuel.

[It was an incident involving a donkey that cut off a child’s hand, and they came to litigate before Rav Pappa bar Shmuel.]

When they came to litigate before Rav Pappa bar Shmuel, they did not tell him the facts as they were, and it entered his mind that it was a person who had injured the child.

Rav Pappa said to them

Rav Pappa:

Go and assess for him the four matters:

[Go and assess the damage and the other four matters that he must pay.]

Rava said

[asked]

to Rav Pappa

to Rav Pappa bar Shmuel: Why is four payments sufficient for him?

But we learned five

payments

in the Mishna

[damage, pain, medical treatment, loss of time, and humiliation]!?

He said

[answered]

to him

Rav Pappa: The four matters that I mentioned

apart from

[except]

the

payment for

damage, I mean, since an animal is liable even for damage, and in the case of a person four additional matters were added.

Abaye said

[asked]

to him:

Why is she obligated to pay “four matters”?

But it is a donkey, and a donkey

and every animal that causes damage

pays only damage!?

Rav Pappa said to them

Rav Pappa: If so,

go and assess its damage

alone!

Since Rav Pappa did not specify that they should assess it as a slave, it entered our minds that it is not assessed as a slave.

And we challenge:

But it must be assessed as a slave

[after all, it must be assessed as a slave]!?

He said to them:

Indeed, that is what I intended, so

go and assess it as a slave!

The child’s father said

[the child’s father]:

I do not want

them to assess him as a slave, because

it is degrading to him

[it is degrading to my son] that he should be assessed as a slave.

They said to him

to the child’s father:

But

how can you prevent them from assessing your son,

for you are causing the child a loss

[you are causing him a monetary loss].

The child’s father said to them:

The child will not suffer a loss through this, since

when he grows

[when the child grows]

I will appease him

with money

from my own

[from mine].

That ox which chewed the hand of a child

[An incident involving an ox that chewed and gnawed the hand of a child].

It came before Rava

[he came before Rava to ask him how to assess the damage].

Rava said to them

Rava to the judges:

Go and assess it as a slave

[go and assess the damage as a slave sold in the marketplace: how much it was worth before it caused the damage and how much it is worth now, and the injurer must pay half the difference].

They said

[they asked]

him

the Sages:

But does not the Master

[my master]

say: Whatever is assessed as a slave

[any injury whose value is to be assessed and appraised as that of a slave]

is not collected

in Babylonia,

since the judges of Babylonia are not ordained judges [as he will explain below]; if so, how can it be that you obligate the one who caused the damage to pay the value of the infant’s hand, for you instructed that the damage be assessed by an appraisal as that of a slave?!

He said

[he replied]

to them

Rava: It is not my intention to obligate him monetarily in court, and

it is not necessary

that which I instructed to assess as that of a slave, except

if he seized,

for even though this case is not adjudicated in Babylonia, nevertheless permission is granted to the injured party to seize the property of the one who caused the damage and retain it with him in exchange for his damage; therefore, the damage must be assessed, in order to know how much the injured party may retain with him if he seizes. And

Rava

who says: Whatever is assessed as a slave is not collected in Babylonia,

follows his reasoning

:

For Rava said: Damage caused by an ox to an ox and damage caused by an ox to a person

[an ox that was damaged by an ox or by a person]—

they collect it in Babylonia.

But

damage caused by a person to a person and damage caused by a person to an ox

[a person who was damaged by a person or by an ox]—

they do not collect it in Babylonia,

and he explains the whole matter as he proceeds:

What is different about damage caused by a person to a person and damage caused by a person to an ox, that they do not

collect it in Babylonia? Because

“judges”

[expert and ordained judges]

we require, and there are none

in Babylonia.

But

damage caused by an ox to an ox and by an ox to a person as well.