Bava Kamma 85b (פה:) — the Talmud in English

One who injures another inadvertently is exempt from payment for incapacitation, medical expenses, pain, and humiliation, and is liable only when acting intentionally or almost intentionally, analogous to “when men quarrel” [Exodus 21:18], where medical expenses and incapacitation are written—Rashi 26a.

to include

liability for payment of “damage” in

an inadvertent act like an intentional one and

in

an unavoidable accident

like a willing act

And we do not say: He is exempt from payment, analogous to the other “four categories of indemnity,” for which he is liable only if he acted intentionally or at least almost intentionally.

And we answer: From this verse one can learn that one is liable for pain in a case involving damage, and also that an inadvertent act is like an intentional one. For if you say that the verse came only to teach the obligation to pay for pain in a case involving damage,

then let the verse write: “a wound for a wound,”

and

what is the meaning of “a wound in place of a wound”? You may infer two matters.

Rav Pappa said in the name of Rava:

And that all of them are paid in a case involving damage can be learned from what

the verse says [Exodus 21:19]:

“

He shall surely heal him,”

in a doubled expression; and we learn from this that he is liable

to provide medical treatment in a case involving damage.

If he injured him and diminished his value, he is obligated to heal him, in addition to what he must pay him for the damage. And just as with medical treatment he is liable to pay even in a case involving damage, so too the same law applies to pain, incapacitation, and humiliation.

And we challenge this: How can we derive from here that he must provide medical treatment in a case involving damage?

This

verse, “he shall surely heal him,”

is needed for that which

the

tanna of the school of Rabbi Yishmael expounded!

As the tanna of the school of Rabbi Yishmael taught: “He shall surely heal him”—

from here it is derived that permission was granted to a physician to heal.

If so, from where do we learn from this verse also the obligation to provide medical treatment in a case involving damage?!

And we answer:

If so, let the verse write: “and a physician shall heal”;

what is the meaning of “he shall heal”?

You may infer

also

that he must provide medical treatment in a case involving damage.

And we challenge this:

But it is still needed for that which we said [

above, on the first side]

that the verse should state the obligation of medical treatment,

to teach us the obligation to pay for an additional bandage or for growths that developed because of the injury. From where, then, can we derive from it the matter of medical treatment in a case involving damage?!

And we answer:

If so, let the verse say

in identical language:

either “heal, heal,” or “he shall heal, he shall heal.” What is the meaning of “and he shall surely heal”?—

You may infer

that it is also to be expounded

to teach that he must provide medical treatment in a case involving damage.

The Gemara asks: Since it teaches, “And all of them are paid in a case involving damage,”

by inference [

it means]

that it is possible for them to occur without damage.

Since there are circumstances in which incapacitation, medical treatment, pain, and humiliation occur without damage, the beraita therefore had to teach anew that their liability applies even in a case involving damage.

Indeed,

how can you find them without damage [

where can you find such cases]?!

And we explain:

Pain

can be found without damage

as the Mishna teaches:

The Mishna

states concerning pain—

if he burned him with a spit or with a nail, even on his fingernail, in a place where it does not cause a wound.

Since it does not cause a “wound,” this is pain that does not involve damage.

Medical treatment

can be found without damage, for example,

if he had something painful, and it subsided, and [the assailant] came and brought him a powerful medication and made his flesh white. [When he had a wound in his flesh and it was healing, and he came and applied to it an excessively powerful medicine that changed the appearance of his flesh to white, like the appearance of leprosy.] In this case, he did not diminish his value, but

rather

he must apply to him another medication

to restore the color of his flesh. [He must apply another medication to that place in order to restore the flesh’s appearance.]

[He needs another substance to be placed on that spot in order to restore the appearance of the flesh.]

Incapacitation

can be found without damage, for example,

if he locked him in a room and thereby incapacitated him. [He confined him in a room, and as a result he was unable to go out to his work.]

[He locked him in a room, and because of this he cannot go out to his work.]

Humiliation

can be found without damage, for example,

when he spit

in his face [

he spat before him ] and humiliated him, for he did not diminish his monetary value, and there was no pain, medical treatment, or incapacitation.

We learned in the Mishna:

For incapacitation, we view him as though he were a cucumber watchman,

since he has already been given the value of his hand and the value of his foot.

The Sages taught: Incapacitation [

the payment for his being prevented from working during the days of his illness]—how is it assessed?

We view

him as though he were a watchman

over a garden of

cucumbers,

and he pays him for each day of his illness an amount equal to the wages of a cucumber watchman during that period.

And if you should say

and ask: Is it not the case that

the measure of justice has been impaired,

meaning, he has not been treated fairly, since

when this man recovers [

initially, when he was healthy]

he would not earn merely the wages of a cucumber watchman;

only

would he receive,

but would draw water with buckets [

one who draws water with buckets]

and receive wages [

wages] that were greater.

Alternatively,

he would

go on errands

and

receive wages,

so why do you give him only the wages of a cucumber watchman, which are less than the wages of one who draws water or performs errands?!

The beraita answers:

The measure of justice has not been impaired,

for indeed, when he was healthy in his hands and feet, he was fit for these occupations, but now he is fit only to guard cucumbers. He is exempt from payment for the loss of the work that he could perform with his intact hands and feet,

since he has already been given the value of his hand and the value of his foot.

He pays him only for what the illness now causes him—that he is unable to earn, namely, the wages of a cucumber watchman.

Rava said:

a.

If he severed his hand, he gives him the value of his hand

as payment for “damage,”

and

with regard to

“loss of livelihood,” we view him as though he were a cucumber-watchman

since, after recovering from the illness caused by the injury, he will be fit to guard cucumbers.

b.

If he broke his leg

[his two legs]

he gives him the value of his leg

as payment for “damage,”

and

with regard to

“loss of livelihood,” we view him as though he were a gatekeeper,

and he gives him the amount earned by a gatekeeper throughout the entire period of his illness. However, he does not give him the amount earned by a cucumber-watchman, since one whose two legs have been severed cannot walk around the garden and guard the cucumbers.

c.

If he blinded his eye

[his two eyes] of his fellow,

he gives him the value of his eye

as payment for “damage,”

and

with regard to

“loss of livelihood,” we view him as though he were grinding at a mill,

since after he recovers he will be fit to grind at a mill.

d.

If he deafened him

[a person who struck his fellow and made him deaf]

he gives him the value of his entire body,

since from now on he is fit for no work, and he has no market value.

Rava raised a dilemma

[he was uncertain]:

If he severed his hand and did not

have him assessed

by the court, [as to how much he must pay,] and then

broke his leg and

still

did not have him assessed,

then

blinded his eye and did not have him assessed, and ultimately deafened him, what is

his legal status, and how much must the assailant pay?

Do we say

[shall we say]:

Since he was not assessed

initially,

one assessment suffices for him,

and we do not assess each injury separately; rather, one assessment includes everything,

and he gives him the value of his entire body all at once

[in a single payment].

Or perhaps

each

one

and

one

is assessed separately, and

we assess it and give it to him.

The practical difference

[if you say that each injury is assessed separately] is:

for he must give him

[give, pay him]

pain and humiliation for each and every one,

since it is the way of the world that when one payment is fixed for several matters, the total is reduced from the payment that would result if each matter were assessed separately.

Granted

[indeed,] with regard to payments

for damage, medical care, and loss of livelihood, we do not give him payment for each and every one

[we do not assess each injury separately],

because with regard to “damage,” it makes no difference whether we assess separately how much his value diminished each time, or whether we assess everything at once, since ultimately he must give him the value of his entire body.

And even with regard to “medical care,” this makes no difference if treatment did not begin before the final injury, since the amount of the payment is determined according to what the physician will demand for treating him, and this does not depend on whether he was injured several times or all at once.

Likewise, with regard to “loss of livelihood,” there is no reason to calculate each injury separately,

since when he gives him

ultimately

the value of his entire body,

he is

considered as though he killed him, and he has given him the value of his entire body,

and he is like his slave, to whom he need not pay wages for his labor.

But with regard to payments for

“pain” and “humiliation,” at least

[in any event,] one may say:

he gives payment for each and every one, since he has had

several instances of

pain and humiliation,

or perhaps one assessment suffices for him, and he pays him for the pain and humiliation of all the injuries as though they had all been inflicted at one time.

And if you should say: Since he was not assessed

initially, he does not pay him for each instance of pain and humiliation separately, but rather

he gives him the value of his entire body all at once

[everything is assessed in a single assessment].

It remains uncertain: If he was

assessed

between one injury and another, and they said to the assailant, “Give him this much and this much,” but he still did not pay him before he injured him again,

what

is his legal status?

Do we say: Since he was assessed

already, and the court said to the assailant, “Give him this much and this much,” it is considered as though the money had been collected, and

he must give him payment for each one separately.

Or perhaps, since he did not pay

[he has not yet paid, and the money remains subject to collection],

he gives him the value of his entire body.

And we conclude:

Teyku.

This matter remains unresolved.

Rabba raised a dilemma

[he was uncertain]:

Rabba:

If he struck him with a blow that requires him to refrain from work, but ultimately he will become fully healthy as at first, so that there is only

loss of livelihood,

except that if he were to be sold now, his value would be lower, this blow is found to be one

that lowers his value

now

in monetary terms; what

is his legal status? And

what is the case? For example, he struck him on the hand, and his hand shriveled

[dried out and contracted]

because of the blow

but

ultimately it will recover

to its original health and strength.

What

is his legal status?

Since it will ultimately recover, he gives him nothing

for his hand; he gives him only his loss of livelihood.

Or perhaps, at present, at any rate,

ultimately

he has lowered

his monetary value, and he must pay him the amount by which his value was diminished through the injury.

Come and hear

from the Mishna [below, 87a], which states that he pays him “damage”:

a. One who injures his father or mother with an injury involving blood [“a wound”] is liable to the death penalty imposed by the court [strangulation].

b. One who injures his fellow on Yom Kippur with an injury involving blood, although it constitutes labor [taking a life—Shabbat 75b], is not liable to the death penalty imposed by the court, but only to karet.

c. If he committed a transgression for which one is liable to the death penalty imposed by the court, and at that same time injured his fellow, he is exempt from payment. But he is not exempt from payment if the transgression entails only karet or lashes.

One who strikes

his

father or mother

[or his mother]

and does not make a wound in them,

since he is not liable to the death penalty imposed by the court for striking them, is liable for all five: damage, pain, medical care, loss of livelihood, and humiliation.