Bava Kamma 84a (פד.) — the Talmud in English

A minor

(a dwarf)

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

are not equal. And

how can we execute him?

For

the Torah said:

(Leviticus 24:22)

“You shall have one law”—

a law that is equal for all of you!?

Rather

you are necessarily forced to say: We do not follow “adult” and “minor” with regard to their physical stature. Rather, we say:

The soul that he took from him—the Merciful One said that a soul

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

and there is no proof from here to say that “an eye for an eye” means monetary compensation.

b.

Another beraita was taught

(in another beraita):

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

monetary compensation.

And do not wonder and say:

You say monetary compensation;

from where do you know this!?

Or

perhaps

it is actually a literal eye!?

For you say this on your own.

If it were the case that

the assailant

was blind and blinded

his fellow’s eye; if it were the case that the assailant

was one-armed

(in that hand)

and severed

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

lame

(in his leg) and

made

his fellow lame,

how

do I fulfill in

this

case “an eye for an eye”!?

Rather, you are necessarily forced to say: “An eye for an eye” \-

monetary compensation.

And if you would say: In fact, “an eye for an eye” means literally an eye when it is possible to blind his eye, but a blind person who blinded another pays monetary compensation—

this too cannot be said, because according to your words, the assailant’s law changes from person to person,

and

the

Torah said: “You shall have one law”—

a law that is equal for all of you.

And you are necessarily forced to say: “An eye for an eye” means monetary compensation, in the case of every person.

They said

(the members of the academy asked):

What difficulty

is this!?

Perhaps

in fact, “an eye for an eye” means literally an eye,

where it is possible

to fulfill the verse according to its plain meaning,

it is possible,

and we 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 meninges have been perforated] is exempt from execution, because the murdered person is a gavra ketila [regarded as already dead], and it is impossible to impose liability for killing him.

b. “Testimony that you cannot refute,” meaning 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 refute.” For if you accept the testimony in order to execute the murderer, who is a tereifa, and the witnesses are subsequently refuted, we would not execute the witnesses on the basis of “you shall do to him as he schemed to do to his brother” (Deuteronomy 19:19), because they schemed only to kill a gavra ketila.

d. 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; consequently, a tereifa who killed is exempt.

For if you do not say this

([that] where it is not possible, it is not possible), and you say: It is impossible to exempt him entirely, and with regard to injury, he necessarily pays monetary compensation—

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

“a tereifa who killed a healthy person,”

since the Torah said (Exodus 21:12): “One who strikes a person and he dies shall surely be put to death,” yet it is impossible to execute the tereifa, because he is a gavra ketila, and the testimony given against him is “testimony that you cannot refute” and is not testimony? And

what do we do with him!? b. One may ask: Since this is “testimony that you cannot refute,” it is not considered testimony, and we say that perhaps he did not actually kill. If so, what is the difficulty? “One law” is properly fulfilled with regard to every murderer whom the court judges for his homicide, while the tereifa is not executed because there is no testimony that he killed. Perhaps he indeed did not kill; if so, there is no contradiction to what the Torah said, “You shall have one law,” and there is again no necessity to say that where it is not possible, it is not possible!—Based on Rabbi Akiva Eiger. Seemingly, this is a difficulty only if the disqualification of “testimony that you cannot refute” is due to a “concern that the witness is lying,” meaning that we fear that the witness is not telling the truth. But if the disqualification is merely a scriptural decree, there is no difficulty, because there is testimony here, except that we do not judge on its basis, and “one law” is not fulfilled here. Seemingly, it is obvious that the disqualification of testimony that you cannot refute applies even to Moses and Aaron, although they are not suspected of lying [see Bava Batra 159a]. Therefore, it must be a scriptural decree, and Rabbi Akiva Eiger’s difficulty is resolved—Hazon Kashah. [Seemingly, this inquiry may be dependent on the dispute between the Rabbis and Sumkhus above, 75b, as to whether, when the defendant admits the witnesses’ statements, this is considered testimony that you cannot refute, since there is no “concern that the witness is lying” [as Sumkhus maintains], or whether it is a scriptural decree disqualifying it in every case [as the Rabbis maintain]—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 refuted, since ultimately there is no “testimony” here upon which the court must deliberate. Consequently,

in every testimony that the court accepts the law that is equal for all of you is fulfilled. The Hazon Ish [in Likuttim] wrote in answer to Rabbi Akiva Eiger’s difficulty that since even if the tereifa kills, he will be exempt, it follows that the law is not fulfilled in the case of a tereifa who killed outside the presence of the court. The “one law” that is required means that the suffering received by the sinful soul should be equal in every person; it is insufficient that the intellectual conception of the law be the same. c. In Kovetz Shiurim [Part II, section 39], he cited the words of Maimonides [Monetary Damages 10:7] that a tereifa who killed is exempt because he is considered dead. 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 sugya, which asks, “What do we do with a tereifa who killed a healthy person?” That is, it is written concerning a murderer, “a life for a life,” whereas a tereifa has no “life,” and it is impossible to fulfill the verse with regard to him; therefore, he is exempt from punishment. [The reason that a tereifa who killed in the presence of the court is executed is not punishment for his homicide, but because it is a mitzva to eradicate evil from the world.] Something similar was cited in the Likutei Rabbi Akiva Eiger, from a work entitled Kushiyot Atzumot. d. As for why the Gemara does not raise the difficulty from monetary compensation—if he has no money, what do 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 exempt forever.—Hiddushei HaRim.

Rather

you are necessarily forced to say:

Where it is possible

to fulfill the Torah’s law,

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 a blind person who blinded another, we exempt him entirely, and there is no proof from here to say that “an eye for an eye” means monetary compensation.

c.

In the school of Rabbi Yishmael a beraita was taught

(in the academy of Rabbi Yishmael they taught a beraita): “An eye for an eye” \-

monetary compensation, because

the verse says

(Leviticus 24:20): “As he has given a wound to a person,

so shall it be given to him,” and the

“giving”

mentioned here is not the giving of a wound,

but monetary compensation.

And we ask:

If that is so,

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

“As he has given a wound to a person”—does this also mean that he has given

a

monetary payment!?

It is obvious that the word “giving” at the beginning of the verse refers to inflicting an injury. If so, “giving” at the end of the verse should likewise be understood in this way. From where, then, do we derive that it refers to giving money!?

They said

(the members of the academy explained):

The school of Rabbi Yishmael

did not derive this from the meaning of the word “giving,” but

they expound an extra verse

(they learned this interpretation from the redundancy in the verse).

For

once

(it is already)

written

(there, verse 19):

“And if a man inflicts a wound upon his fellow, as he has done, so shall it be done to him,”

and we learn from here 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!?

Conclude from it

that the “giving” mentioned here is not the giving of a wound, but the obligation of

money

that the judges impose upon him. b. Meshekh Hokhma asked: Why did the Torah not state the obligation with regard to the person himself, as it states concerning an animal, “he shall pay it,” which places the obligation upon the person’s body to pay from whatever he possesses? Likewise, he should be obligated to pay for the injury he inflicted upon his fellow!? He answered: This provides proof for Maimonides’ position that one does not pay damages if he admits without witnesses; he pays only if there are witnesses that the injured party emerged from his house. Since an admission before the court without witnesses does not impose payment upon him, payment is not imposed upon him; rather, it is incumbent upon the court to collect it from him through the witnesses. Therefore it is stated, “so shall it be given to him,” and so on: the Merciful One warned only the court.

. And we ask: If you expound an extra verse, what do we need the beginning of the verse,

“As he has given a wound to a person,”

and what does it come to teach us!?

And we answer:

Since

(because)

it was necessary to write

the end of the verse,

“so shall it be given to him,”

in order to derive from it monetary payments,

it also wrote, “as he has given a wound to a person.”

d.

In the school of Rabbi Hiyya a beraita was taught

(in Rabbi Hiyya’s academy 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, “eye for eye, tooth for tooth, hand for hand, foot for foot” (Deuteronomy 19:19, 21).

And we expound:

“Hand for hand”

means

something that is transferred from hand to hand, and what is that—

money.

That is, the fact that the verse changed its wording and did not say “hand in place of hand” comes to teach us that he gives him money, which is something transferred from hand to hand. And just as in the case of a conspiring witness “eye for eye” means monetary compensation, so too, in the case of one who injures another, “an eye for an eye” means monetary compensation. An explanation may be added based on what was written in Kovetz Shiurim [Makkot, paragraphs 5–8, and Ketubot, paragraphs 107–108], that the nature of the punishment of a conspiring witness is that the liability imposed upon the defendant is transferred to the witnesses. If so, the witnesses should be judged as one who injured and severed his fellow’s hand. If, in the case of injury, “an eye for an eye” means literally an eye, it necessarily follows that the same should be done to conspiring witnesses. And if, in the case of conspiring witnesses, “hand for hand” means monetary compensation, it necessarily follows that one who injures another pays monetary compensation and nothing more.

And we wonder:

If that is so,

if, as you say, “hand for hand” is a change of wording intended for exposition, then

“foot for foot”

which the verse states

is likewise so

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

They said

(the members of the academy explained):

The school of Rabbi Hiyya expounds an extra verse

—that is, they did not learn this solely from the wording, but from the redundancy in the verse.

For

once

(it is already)

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 inflict upon the person against whom he testified.

And

if it enters your mind that “eye for eye” means literally an eye, and “hand for hand”

means literally a hand,

why do I need “hand for hand,”

for what would be missing from the verse? It is obvious that if he testified that another person’s hand should be severed and he was refuted, his hand is severed!?

Rather, is it not that

you can conclude

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

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” is written

for exposition,

it also wrote “foot for foot.”

The Gemara now cites several expositions by amoraim that “an eye for an eye” means monetary compensation:

a.

Abaye says: It is derived

—that is, a source must be brought to establish that “an eye for an eye” means monetary compensation—

from

what

was taught in the academy of Hizkiyya:

For the academy of Hizkiyya 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

in place of an eye; a life

alone

in place of a life, and not

a life and an eye in place of an eye,

meaning that you should not sentence him to a punishment 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”

means literally an eye,

then

there are times when you find

that you take from him

an eye and a life in place of an eye.

And how could this happen? In a situation

where, while he is being blinded

(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

in fact, “an eye for an eye” means literally an eye, except that

we assess him

beforehand:

if

we assess him and determine that he

can withstand

the injury to the eye without dying,

we act

and blind his eye.

But if he cannot withstand it,

and there is concern that he will die while his eye is being blinded,

we do not act

and he is entirely exempt.

And if we assess that he can withstand

the injury without dying,

and we act upon him

(we blind his eye),

and

even so

his spirit departs

during the injury,

if he dies, let him die,

and we do not refrain because of this concern.

In the case of one who is liable to lashes, they assess whether he can receive the thirty-nine lashes that the Torah made him liable to receive. If not, they reduce the number according to his strength, because if a weak person is struck a great number of blows, he might die from them, whereas he was liable only for lashes, not execution.

Is it not

(the question is)

taught

in the Mishna

with regard to lashes: We are not concerned that he will die if we assessed that he would not die: If one became liable to lashes and

the court

they assessed him

as capable of receiving them without dying,

and he died under his hand

of the court agent administering the lashes,

he is exempt

from exile and is not judged as an unwitting murderer, since at the outset they 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 in such a manner that he will not die; there is no concern that perhaps he will die.

b.

Rav Zevid said in the name of Rabba:

We can derive that “an eye for an eye” means monetary payment from the fact that

the verse states [Exodus 21:25]: “

a wound for a wound,”

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

to give

payment for

“pain” in place of

the fact that there is also

“damage.”

And if it enters your mind that

“an eye for an eye” means

literally,

why is he obligated to pay for pain? For

just as [like]

for

the injured party

there is pain

when he injured him,

for this one [the injurer]

there is likewise pain

when he is injured!?

Thus, the one who causes the injury receives pain in place of pain through the very act of injuring him, so why should we impose upon him a separate obligation for the injured party’s pain!?

Rather, necessarily, “an eye for an eye” means monetary payment, and they do not injure him and remove his eye. The payment for damage does not include “pain”; therefore, the Torah obligates payment for pain in addition to what he must in any event pay for the damage.

And we reject this:

but what difficulty

is this!?

Perhaps it may be said: In reality, “an eye for an eye” means literally, and if the pain of the injurer is equal to the pain of the injured party, indeed we do not separately obligate him for pain.

But, after all,

there is a person who is pampered [there is a person who is delicate and indulged]

and

he experiences greater pain [a great deal],

and there is a person who is not pampered

and

he does not experience pain

to such an extent.

Accordingly, one can say that the verse increased the payment for pain in place of damage in a case where the injured party’s pain is greater than the injurer’s pain.

What practical difference does this make? To give him that which lies between them [the injurer must pay for the difference between his pain and the injured party’s pain].

c.

Rav Pappa said in the name of Rava:

We can derive that “an eye for an eye” means monetary payment from the fact that

the verse states [Exodus 21:19]:

“and he shall surely heal him,”

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

to give

payment for

medical treatment in place of damage.

And if it enters your mind that

“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 requires a physician [just as the injured party requires a physician],

this one [the injurer]

also requires a physician

when he is injured!?

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 expenses. Why, then, should we obligate him to make an additional payment for this!?

Rather, necessarily, “an eye for an eye” means monetary payment. 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 a payment for the injured party’s medical treatment.

And we reject this:

what difficulty

is this a proof!?

Perhaps it may be said: In reality, “an eye for an eye” means literally, and if the medical treatment required by the injurer and the injured party is equal, 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 scar and heals quickly],

and there is one whose flesh does not heal quickly.

Accordingly, one can say that the verse came to obligate payment for medical treatment in place of damage only when the injured party’s treatment is longer and more expensive than the injurer’s.

What practical difference does this make? To give him that which lies between them [the one who caused the damage must pay the injured party the difference in expenses].

d.

Rav Ashi said:

“an eye for an eye” means monetary payment.

It is derived [it is brought and learned] by means of a

gzera shava,

“in place of”—

“in place of” from the case of an ox:

it is written here, with regard to damage caused by a person who injured his fellow,

“an eye for an eye,” and

it is written there [Exodus 21:36], with regard to an ox that gored and killed an ox:

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

Just as there

with regard to an ox that gored,

money

is what he pays,

so here

with regard to a person who injured another, he pays

money.

And we challenge this:

why do you see fit to derive [from where do you know to learn] a

gzera shava,

“in place of”—

“in place of” from the case of an ox

to obligate him to pay money?

Let us derive a

gzera shava,

“in place of”—

“in place of” from the case of a person, as it is written [Exodus 21:23]:

“and you shall give

the

“life in place of life.”

And let us say:

Just as there

with regard to one who killed a person, “a life in place of a life”

literally,

since he is killed in place of the life of the murdered person,

so here

“an eye for an eye” means

literally!?

The members of the academy replied [they answered]:

We derive

and learn by means of a gzera shava the law of

damage from

the law of

damage,

which are comparable to one another,

but we do not derive

the law of

damage

in the case of one who injures his fellow

from the death

of a murderer.

Therefore, “an eye for an eye” should be derived from “an ox in place of an ox”—that one pays money—and not from “a life in place of a life”—literally.

And we challenge this:

on the contrary,

if you have come to compare them to one another, it should be said:

we derive a person from a person [even though one case concerns injury and the other murder],

and we do not derive a person from an animal.

Rather, Rav Ashi said: A

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

from “in place of which he afflicted” [Deuteronomy 22:29]

derives it: Just as there payment of money is required, so too “an eye for an eye” means monetary payment. There, the cases are entirely comparable:

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 damage from damage.

The Gemara now returns to discuss the substance of the law that “an eye for an eye” means monetary payment.

It is taught

in a beraita:

Rabbi Eliezer says: “an eye for an eye”—

literally.

And we are astonished: Is it conceivable that “an eye for an eye”

literally, enters your mind

that this is Rabbi Eliezer’s view!?

And is it possible that

Rabbi Eliezer does not hold that

“an eye for an eye” means monetary payment

like all these tannaim

mentioned above!?

He said [he explained],

Rabba:

In reality, Rabbi Eliezer too holds that “an eye for an eye” means monetary payment. And when he says, “an eye for an eye”—literally, he means

to say that he is not assessed as a slave,

as the tanna of our Mishna says.

What Rabbi Eliezer means by “literally” is “as he is,” and he is not assessed “as though” he were a slave.

Abaye [asked]

said to Rabba:

If he is not assessed as a slave,

then as whom

should we assess him? If you say:

as a free person

we assess him,

does a free person [is there a free person who]

has a monetary value,

and how can he be assessed as a free person!?

Rather, [he explained,]

Rav Ashi said: It means that he is not assessed [the payment is not assessed]

according to the injured party,

that is, by asking how much he was worth before he injured him and how much he is worth now, and paying him the difference between them.

Rather, it is according to

his eye of the

injurer

that we assess him: how much he would be worth if sold now, and how much he would be worth without an eye. This is what he means by “literally”: The injurer’s eye is assessed in place of the injured party’s eye.

There was a certain donkey that severed a child’s hand, and it came before

Rav Pappa bar Shmuel. [A case occurred involving a donkey that severed a child’s hand, and the case came 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:

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

Rava [asked]

said to Rav Pappa bar Shmuel:

Why is it sufficient for him to pay four payments,

when we learned five

payments

in the Mishna [damage, pain, medical treatment, loss of livelihood, and humiliation]!?

Rav Pappa [replied]

said to him: The four matters that I mentioned

Rav Pappa: The four matters that I mentioned

apart from

the payment for

the damage, I meant, since even an animal is liable for damage, while in the case of a person the other four matters are added.

Abaye [asked]

said to him:

Why is she obligated to pay “the four matters,”

when it is a donkey, and a donkey

and every animal that causes damage

pays only for damage!?

Rav Pappa said to them: If so,

go and assess only his damage

!

Since Rav Pappa did not specify that they should assess him as a slave, it entered our minds that he was not to be assessed as a slave.

And we challenge this:

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

He said to them:

Indeed, that is what I intended, and

go and assess him as a slave!

The child’s father said to them [the child’s father]:

I do not want

them to assess him as a slave, because

it is degrading to him [it is a disgrace for my son]

that he should be assessed as a slave.

They said to

the child’s father:

but

how can you prevent them from assessing your son,

when 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 on account of this, since

when he grows up [when the child grows up]

[when the child grows]

I will appease him

with money

from my own funds [from mine].

There was a certain ox that crushed a child’s hand [a case involving an ox that chewed and crushed a child’s hand].

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

Rava said to the judges:

Go and assess him as a slave [go and assess the damage as one assesses a slave sold in the marketplace]:

how much he was worth before the injury and how much he is worth now; the one who caused the damage must pay half the difference.

They said

[they asked]

him

the Rabbis:

But master

[my lord]

himself said: Anything whose value is assessed as that of 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 you obligate the perpetrator to pay the value of the infant’s hand? After all, you instructed that the injury be appraised according to the value of a slave?!

He said

[he replied]

to them

Rava: I do not mean to obligate him monetarily in court, and

it is not necessary

that which I instructed should be appraised as that of a slave, except

if he seizes property,

for although this case is not adjudicated in Babylonia, nevertheless the injured party is permitted to seize the perpetrator’s property and retain it in his possession in lieu of his damages. Therefore, the injury must be appraised in order to determine how much the injured party may retain if he seizes property. And

Rava,

who said: Anything whose value is assessed as that of a slave is not collected in Babylonia,

follows his own reasoning

in this matter:

For Rava said: Damages caused by an ox to an ox and damages caused by an ox to a person

[an ox injured by an ox or by a person] —

are collected in Babylonia.

But

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

[a person injured by a person or by an ox] —

are not collected in Babylonia,

and he proceeds to explain the entire matter:

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

collected in Babylonia? It is because

“judges”

[expert and ordained judges]

are required, but there are none

in Babylonia.

But

damages caused by an ox to an ox and by an ox to a person as well?