Bava Kamma 86b — the Talmud in English

It deals with a minor

whom he shamed and who became shamed.

Mishna:

One who shames a naked person

is liable, and the Gemara explains it.

One who shames a blind person

is liable, for although he does not see, nevertheless he is ashamed in his heart when he knows that they demeaned him in public.

And one who shames a sleeping person is liable,

and

on the other hand—

a sleeping person who shamed someone is exempt.

If he fell from the roof and caused damage and shamed someone,

if he fell through an “uncommon wind,”

he is liable for the damage,

as we derived above [85b] from “wound for wound”: to impose liability for an inadvertent act like an intentional act, and for an unavoidable accident like volition.

And he is exempt from payment for healing, loss of livelihood, and pain, because we require it to resemble “when men quarrel” [Exodus 21:18], that is, either an intentional act or something close to intentional.

And all the more so he is exempt from payment for the shame with which he shamed him.

And if he fell through a “common wind,” he is liable for damage, pain, healing, and loss of livelihood, since he is close to intentional,

but he is exempt for the shame, as it is stated

[Deuteronomy 25:11]:

“and she extends her hand and grasps his private parts,”

which implies that she did so intentionally; therefore,

he is not liable for shame unless he intended it.

Tosafot hold that intention in the case of humiliation is not a law concerning the harmful act itself, but is a separate requirement of intention. Therefore, if so, the law of intention in humiliation cannot be derived from the law of intention in homicide, and a separate derivation is required for each law. Rabbi Yeshaya holds that the requirement of intention concerns the harmful act itself. Therefore, it is dependent on the law of homicide: If there the act is considered an intentional act of killing, then with regard to humiliation as well it is considered an intentional harmful act. And this is also the view of Maimonides [Laws of Monetary Damages 14:15], who rules that there is liability for humiliation caused by fire, because the requirement of intention defines the act itself; where intention cannot apply, it is like a person who caused damage intentionally.

Gemara:

The Sages taught: If he shamed

him

when

he was

naked, he is liable

to pay him,

but

nevertheless

it is not similar

if he

shamed

him

when

he was

naked, to shame

him

when

he was

clothed;

and when they assess the shame, they assess how much a naked person would wish to receive in order that this shame be inflicted upon him, but they do not assess this matter with a clothed person.

And likewise if he

shamed

him

in a bathhouse, he is liable

to pay him,

but it is not similar

if he

shamed

him

in a bathhouse,

where people stand naked, and they have so much less shame,

to shame

him

when

he is

in the marketplace. The Master said

in the beraita:

If he shamed him naked, he is liable.

And we raise an objection: Why? Is

a naked person capable of shame?!

Since he does not care about walking naked before people, what does it mean to shame him? He is already standing in a state of shame!?

He said,

explained

Rav Pappa:

It does not deal with a person who does not care about his shame and walks naked before people. Rather,

what is “naked”

in the beraita? It is a case

where a wind came and wrapped up his garments,

[the wind blew against him, wrapped his garments, and raised part of the hem of his garment]

and he came and raised it further

[he raised the garment further]

and shamed him.

The Master said in the beraita:

If he shamed him in a bathhouse, he is liable.

And we raise an objection: Why? Is

a bathhouse capable of shame?!

Everyone stands there naked, and they have no shame!?

He said,

explained

Rav Pappa:

It does not deal with an actual bathhouse, where everyone stands naked. Rather,

he shamed him beside the river,

where he had exposed part of his body in order to wash his feet or calves, and this one came and made him naked.

Rabbi Abba bar Memel raised a dilemma

[he was uncertain]

: If he shamed

him

when

he was

sleeping and died,

he died during his sleep and did not recognize the shame that this person had inflicted upon him,

what is

his law?

And we ask:

What is the matter about which he is uncertain

[what are the sides of the uncertainty]?

He said,

explained

Rav Zevid: This is what he is uncertain about:

Is the liability for shame

because of embarrassment

and covering of the face

and he died,

and since his shame was not known to him, his face was not covered,

and he has no embarrassment.

Or perhaps,

the liability for shame

is because of degradation,

that he degrades his honor before many people,

and

even though he does not recognize this, nevertheless, in the end

he degraded him

[he demeaned his honor], and therefore one who shames a sleeping person who dies pays the value of his shame to his heirs.

Ta shma

from a beraita, that it is because of degradation, and if he shamed him and he died, he is liable:

Rabbi Meir says: A deaf-mute and a minor have shame,

and one who shames them is liable

; a fool has no shame,

and one who shames him is exempt.

Granted, if you say

that the liability for shame

is because of degradation,

it

is why it teaches that a minor

has shame: Although he does not understand or recognize his shame, and he is therefore like a sleeping person who is shamed, nevertheless, he has demeaned his honor, and he is liable.

But if you say

that the liability for shame

is because of embarrassment,

why is he liable? Is

a minor capable of shame,

when he does not recognize his shame!?

And we raise an objection:

But what

did you wish to say:

because of disgrace? If so, this should be difficult for you:

even a

mentally incompetent person should likewise make the one who disgraces him liable, for although he does not have “embarrassment,” nevertheless “disgrace” applies to him!?

They said:

The members of the academy explained: “Disgrace” does not apply to a

mentally incompetent person,

for

there is no

embarrassment

and disgrace

greater than this,

and it is not applicable to add disgrace to a person as low and degraded as a mentally incompetent person.

And we ask:

In any event, let us derive from it

[from the

beraita]

that it is because of “disgrace”; for if it is because of “embarrassment,”

is a minor capable of embarrassment!?

And we reject this: In fact, it is because of “embarrassment,” and embarrassment applies even to a minor,

as Rav Pappa said

later, that embarrassment applies to a minor who has grown somewhat,

for he is embarrassed by it and becomes embarrassed

[when something of which he is ashamed is mentioned to him].

Here too,

it is not speaking of every minor but rather of one who has grown somewhat,

for he is embarrassed by it and becomes embarrassed.

Rav Pappa said: This is what was in question

for Rabbi Abba bar Memel: Is the liability for embarrassment

specifically because of his own embarrassment

alone,

and he has died

without having become embarrassed?

Or perhaps

the liability for embarrassment is also

because of family embarrassment,

for they are embarrassed by the fact that the honor of their relative was degraded; and even though he died and did not become aware of his embarrassment, his family members are embarrassed.

Come and hear

from a

beraita that it is because of family embarrassment:

A deaf-mute and a minor have embarrassment,

and one who disgraces them is liable.

A mentally incompetent person has no embarrassment,

and one who disgraces him is exempt.

If you say

that the liability for embarrassment is also

because of

family embarrassment,

this is why it teaches: One who disgraces

a minor

is liable.

But if you say

that liability for embarrassment applies only

because of his own embarrassment,

then

is a minor capable of embarrassment!?

And we raise an objection:

But what

did you wish to say:

because of

the embarrassment of the family members? If so,

then

even a mentally incompetent person

should likewise make the one who disgraces him liable, for there is the embarrassment of the family members!?

And we answer: Embarrassment does not apply to a

mentally incompetent person

even with regard to the family members,

for there is no embarrassment greater than this,

and it is not applicable to add embarrassment to the family members by degrading the honor of their mentally incompetent relative.

And we ask:

In any event, let us derive from it

[from the

beraita]

that liability for embarrassment is also

because of family embarrassment, for if it is only because of his own “embarrassment,”

then

is a minor capable of “embarrassment,”

when he has no understanding with which to recognize his embarrassment!?

Rav Pappa said: No,

indeed there is a minor who is capable of embarrassment and embarrassment, such as

one who is embarrassed by it and becomes embarrassed,

and in fact it is because of his own embarrassment. And as for that which it teaches: A minor has embarrassment, it is referring to a minor who has grown somewhat and recognizes his embarrassment.

And it was taught

in a

beraita in accordance with Rav Pappa’s words:

Rabbi says: A deaf-mute has embarrassment,

for he recognizes his embarrassment and suffers; therefore, one who disgraces him is liable.

A mentally incompetent person —

has no embarrassment,

for there is no embarrassment greater than this.

A minor —

sometimes has

embarrassment, and one who disgraces him is liable;

sometimes —

he has none

of the embarrassment, and one who disgraces him is exempt.

How so:

This one

[has embarrassment]

is one who is embarrassed by it and becomes embarrassed; this one

[has no embarrassment]

is one who is embarrassed by it but does not become embarrassed,

and since he does not recognize his embarrassment, the one who disgraces him is not liable, even though he degraded his honor and his family members became embarrassed.

We learned in the Mishna:

One who humiliates a blind person

We learned in the Mishna:

One who disgraces a blind person and one who disgraces a sleeping person is liable, while a sleeping person who disgraces another is exempt.

And from the fact that the Mishna distinguished, concerning a sleeping person, between when others disgraced him and when he disgraced others, but concerning a blind person the Mishna did not distinguish, it is implied that concerning a blind person, whether others disgraced him or he disgraced others, he is liable.

If so,

the Mishna is not in accordance with

the opinion of

Rabbi Yehuda,

for it was taught

in a

beraita:

Rabbi Yehuda says: A blind person

who disgraced others

has no

law of embarrassment, and he is exempt.

And so Rabbi Yehuda exempted a blind person

from

those liable to exile

[so that he would not be liable for exile] if he killed unintentionally,

and from those liable to lashes

[so that he would not be liable for lashes in court],

and from those liable to death by the court

[so that he would not be liable for “death by the court”] if he transgressed a prohibition for which one is liable to lashes or death by the court, just as Rabbi Yehuda exempted him from liability for embarrassment, and he proceeds to explain the entire matter:

a.

What is the reason for Rabbi Yehuda’s view

A.

What is Rabbi Yehuda’s reason

for exempting a blind person from liability for embarrassment?

He derives

[by means of a

gzerah shavah]

“your eye” —

“your eye”

from conspiring witnesses.

Just as there,

[concerning conspiring witnesses], it is written [Deuteronomy 19:21], “Your eye shall not pity,” and the blind are not

liable for the punishment of conspiring witnesses, for if he is blind in both eyes, it is impossible for him to testify that his fellow’s hand was severed, since he does not see.

the blind are not

Here too,

[concerning liability for embarrassment], it is written [Deuteronomy 25:12], “And you shall cut off her hand; your eye shall not pity,” and

the blind are not

liable for this payment.

B. And what is Rabbi Yehuda’s reason for exempting a blind person

from those liable to exile?

For it was taught

in a

beraita: It is stated in the section concerning one who kills unintentionally [Numbers 35:22–23]: “But if he pushed him suddenly without enmity, or threw upon him any implement without lying in wait; or with any stone by which one may die, without seeing, and it fell upon him and he died, while he was not his enemy and did not seek his harm.”

And from what Scripture said:

“Without seeing,”

it is implied that he sees in another place, but here it was without seeing —

to exclude a blind person

who does not see at all. These are

the words of Rabbi Yehuda.

Rabbi Meir

disagrees and

says: On the contrary, “without seeing” —

to include a blind person.

And we explain their dispute:

What is Rabbi Yehuda’s reason? He can say to you

that Rabbi Yehuda says: It is stated in the section concerning one who kills unintentionally in one place [Deuteronomy 19:5]:

“And when a man goes with his fellow into the forest to hew wood,

and his hand swings the ax to cut the tree, and the iron slips from the wood and finds his fellow and he dies, he shall flee to one of these cities [cities of refuge], and he shall live.” And from the fact that Scripture did not specify and exclude a blind person, it is implied that everyone who enters the forest to hew wood is included,

even a blind person.

Therefore, when

the Merciful One wrote

in another place [Numbers 35:23]:

“Without seeing,”

we say: It came

to exclude, and the blind person is not liable.

And Rabbi Meir

what is his reason, that he says “without seeing” is to include a blind person? Is it not, on the contrary, the meaning of the verse to exclude a blind person!?

And we explain:

The Merciful One wrote: “Without seeing” —

to exclude, as we said;

and the Merciful One wrote

[Deuteronomy 19:4]: “And this is the matter of the murderer who shall flee there [to the city of refuge] and live, who strikes his fellow unintentionally, and he was not his enemy from yesterday and before.” And

“unintentionally”

implies that elsewhere he has knowledge of where he is striking and where the stone he throws will fall, but here he has no knowledge,

to exclude

a blind person, who can never know clearly where he is striking.

It follows that it is

an exclusion

[“without seeing”]

after an exclusion

[“unintentionally”],

and

we hold: Wherever the Merciful One writes in such a manner:

“There is no exclusion after an exclusion except to include,”

therefore Rabbi Meir says: “Without seeing” is to include a blind person.

And Rabbi Yehuda

can say to you: There are not two exclusions here, for

that

verse of

“unintentionally”

did not come to exclude a blind person, but rather

to exclude one who intended

to kill someone whose killing does not make one liable [an animal, a gentile, or a fetus] and killed someone whose killing does make one liable [a viable Israelite];

that is what it came to teach.

C. And what is Rabbi Yehuda’s reason for exempting a blind person from

those liable to death by the court? It is derived

by a

gzerah shavah:

“Murderer” — “murderer,” from those liable to exile:

It is stated concerning those liable to exile [Numbers 35:6], “for the murderer to flee there,” and it is stated concerning those liable to death by the court [there, verse 31]: “And you shall take no ransom for the life of a murderer who is guilty of death, for he shall surely be put to death” [by the court].

Just as the “murderer” stated concerning those liable to exile — a blind person is exempt — so too, the “murderer” stated concerning those liable to death by the court — a blind person is exempt.

D. And what is Rabbi Yehuda’s reason for exempting a blind person from

those liable to lashes? It is derived

by a

gzerah shavah:

“Guilty” — “guilty,” from those liable to death by the court.

It is stated concerning those liable to death by the court [there]: “who is guilty of death,” and it is stated concerning those liable to lashes [Deuteronomy 25:2]: “And it shall be, if the guilty man is worthy of being beaten.”

Just as the “guilty” stated concerning those liable to death by the court — a blind person is exempt — so too, the “guilty” stated concerning those liable to lashes — a blind person is exempt.

Another [teaching] was taught

[another

beraita]: