Bava Kamma 85b — the Talmud in English

One who injures his fellow unintentionally is exempt from payments for Shabbat, healing, pain, and humiliation, and is liable only when acting intentionally or nearly intentionally, analogous to “when men quarrel” [Exodus 21:18], where healing and Shabbat are written — Rashi 26a.

to include

liability for payment of “damage” in

unintentional conduct as intentional conduct and

in

duress

as volition

And we do not say: he is exempt from payments, analogous to the other “four matters,” for which he is liable only if he acted “intentionally” or at least “nearly intentionally”.

And we answer: From this verse one can learn to impose liability for pain in a case of damage, and also to impose liability for unintentional conduct as for intentional conduct. For if you say: The verse came only to teach the obligation of payment for pain in a case of damage,

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

and

what is the meaning of “wound beneath wound”? You may derive two matters from it.

Rav Pappa said in the name of Rava:

And that all of them are paid in a case of damage is to be learned from that

the verse says:

[Exodus 21:19]

“And he shall surely heal him”

in a doubled expression, and we learn to obligate him

to provide healing in a case of damage,

for if he injured him and diminished his value, he is obligated to heal him, in addition to what he must pay him for his damage. And just as with his healing he becomes liable to pay even in a case of damage, so too the law applies to pain, Shabbat, and humiliation.

And we challenge: How do we learn from here to provide healing in a case of damage?

This

verse, “he shall surely heal him,”

is needed for that which

the

tanna of the school of Rabbi Ishmael expounds!?

For the tanna of the school of Rabbi Ishmael taught: “And he shall surely heal him” —

from here it is granted permission to a physician to heal:

If so, from where do we learn from here also the obligation of healing in a case of damage!?

And we answer:

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

what is the meaning of “and he shall heal”?

You may derive from it

also

to provide healing in a case of damage.

And we challenge:

But it is still needed for that which we said

[above, on the first side]

for the verse to state in it [the obligation] of healing,

to inform us of the obligation of payment for an additional bandage or when growths developed in him because of the injury; and from where do we learn from it this matter of healing in a case of damage!?

And we answer:

If so, let the verse say

in an identical expression:

Either “heal, heal,” or “he shall heal, he shall heal”; what is the meaning of “and he shall surely heal him”? —

You may derive from it

also to expound

to provide healing in a case of damage.

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

by implication

[it means]

that you can find them not in a case of damage; and since there are circumstances in which Shabbat, healing, pain, and humiliation occur without damage, therefore the beraita needed to teach anew that their obligation applies even in a case of damage.

And indeed,

not in a case of damage,

how can you find it

[where can you find them]!?

And we explain:

Pain

can be found not in a case of damage:

as the Mishna teaches

the Mishna:

Pain —

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

And when it does not make a “wound,” it is pain that is not in a case of damage.

Healing

can be found not in a case of damage: such as

his flesh was hurting him somewhat, and he went and brought a sharp medicine and made his flesh pale.

[When he had a wound in his flesh and it was healing, and he came and put upon it an excessively sharp substance that changed the appearance of his flesh to pale, like the appearance of leprosy.] And in this situation, he did not diminish his value, but

he needs to have a medicine placed upon him

another

to restore the color of his flesh.

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

Shabbat

can be found not in a case of damage: such as

he confined him in a room and thereby rendered him idle.

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

Humiliation

can be found without damage: such as

he spat

in his face

[he spat in his face ] and humiliated him, for he did not diminish his money, and there is neither pain nor healing nor Shabbat in it.

We learned in the Mishna:

For Shabbat, we view him as though he were a watchman of cucumbers,

for he has already given him the value of his hand and the value of his foot.

The Sages taught: Shabbat

[the value of his idleness from his work during the days of his illness] — how do we assess it?

We view

him as though he were a watchman

over a garden of

cucumbers

and pay him for all the days of his illness an amount equal to the wages of a watchman of cucumbers during that period.

And if you say

and ask: Behold,

the measure of justice has been impaired,

meaning, they have not treated him properly, for

when this man recovers

[originally, when he was healthy]

he did not take only the wages of a watchman of cucumbers,

alone,

but rather he drew water with a bucket

and took wages

[drawing water with buckets]

[wages]

[considerable wages],

or alternatively

he

would go on errands

and

take wages,

and why do you give him only the wages of a watchman of cucumbers, which are less than the wages of a water-drawer and of one who 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 types of work, but now he is fit only to guard cucumbers, and for the loss of the work performed by his complete hands and feet he is exempt,

for he has already given him the value of his hand and the value of his foot,

and he pays him only for what the illness now causes him, namely, that he cannot earn, and that is the value of a watchman of cucumbers.

Rava said:

1.

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

for payment of “damage,”

and

with regard to

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

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

2.

If he broke his leg [

his two legs ]

he gives him the value of his leg

for payment of “damage,”

and

with regard to

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

and he gives him an amount equal to the wage of a gatekeeper throughout the entire period of his illness, but he does not give him an amount equal to the wage of a cucumber-watchman, since one whose two legs have been severed cannot walk around the garden and watch the cucumbers.

3.

If he blinded his eye [

his two eyes] of his fellow,

he gives him the value of his eye

for payment of “damage,”

and

with regard to

“loss of work,” we view him as though he were grinding with millstones,

since after he recovers he will be fit for grinding with millstones.

4.

If he deafened him [

a person who struck his fellow and made him deaf]

he gives him the value of his entire person,

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

Rava inquired [

was uncertain]:

If he severed his hand and did not

have him assessed

by the court, how much he must pay, and he then

broke his leg and

still

did not have him assessed,

he then

blinded his eye and did not have him assessed, and in the end deafened him, what is

his law, how much must the assailant pay?

Do we say [

shall we say]:

since he was not assessed

initially,

one assessment suffices for him,

and they do not assess each injury separately; rather, in one assessment they include everything,

and he gives him the value of his entire person all together [

at one time].

Or perhaps

each

one

and

one

separately

we assess and give it to him.

The practical difference

if you say that each injury is assessed separately is:

that he must give him [

to give, to pay him]

pain and humiliation for each and every one,

since it is the way of the world that if one payment is fixed for several things, this reduces the payment that would result if each and every thing were assessed separately.

Granted [

indeed] with regard to payments

of damage, healing, and loss of work, for each and every one we do not give him [

we do not assess each injury separately]

for with regard to “damage,” there is no difference whether we assess separately how much his value decreased each time, or whether we assess everything at once, for in the end he must give him the value of his entire person.

And also with regard to “healing,” there is no difference in this if the treatment did not begin before the last injury, for 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.

And likewise with regard to “loss of work,” there is no basis for calculating each injury separately,

for since he gives him

in the end

the value of his entire person,

it is

as one whom he killed, and he has given him the value of his entire person,

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

But with regard to payments of

“pain” and “humiliation,” at any rate [

in any event] one may say:

that he gives for each and every one, for there was for him

several times

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 pain and humiliation separately; rather,

he gives him the value of his entire person all together [

they assess everything at one time].

It is uncertain:

He assessed him

between one injury and another and said to the assailant, “Give him such and such,” but he still had not paid him before he again injured him,

what

is his law?

Do we say: Since he was assessed

already and the court said to the assailant, “Give him such and such,” it is as though it had been collected, and

he must give him one by one.

Or perhaps, since he did not pay [

he had not yet paid, and it is awaiting collection],

he gives him the value of his entire person.

And we conclude:

Teyku.

This problem remains unresolved.

Rabba inquired [

was uncertain]

Rabba:

He struck him with a blow that requires him to desist from his work, and in the end he will become whole as at first, so that there is here only

loss of work,

but if he were to be sold now, his value would be reduced; this blow is therefore a blow

that reduces his value

now

in money — what

is its law? And

what are the circumstances? For example, he struck him on his hand and it withered [

dried up and shrank]

his hand

because of the blow

, and it will ultimately return

to its health and strength as at first.

What

is its law?

Since it will ultimately return, he gives him nothing at all

for his hand; he gives only his loss of work.

Or perhaps, at present at any rate,

in the end

he has reduced it

from its monetary value and he must pay him for what his value was reduced by the injury.

Come and hear

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

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

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

c. One who committed a transgression for which one is liable to a court-imposed death penalty, and at that same time injured his fellow, is exempt from paying, but he is not exempt from paying if for that transgression one is liable only to karet or lashes.

One who strikes

his

father and mother [

or his mother]

and did not make a wound in them,

since he is not liable to a court-imposed death penalty for striking them, is liable for all of them — damage, pain, healing, loss of work, and humiliation.