Bava Kamma 90b (צ:) — the Talmud in English

This is the principle

with regard to payments for humiliation:

everything is according to his honor.

And the Gemara explains that this is what the first tanna is saying: All these assessments stated in our Mishna were stated with regard to wealthy and honored people. But with regard to those of lesser status and to the poor, each and every one is assessed according to his honor.

Rabbi Akiva said:

Not so; rather,

even the poor among Israel are viewed as though they were free people

and persons of distinction, but

who have fallen from their possessions, for

they are

the descendants of Abraham, Isaac, and Jacob.

And these assessments were stated with regard both to the wealthy and to the poor.

And

so too there was

an incident involving one who uncovered

the

head of a woman in the marketplace,

and she was poor,

and she came before Rabbi Akiva

to demand compensation for her humiliation,

and he obligated

him

to give her four hundred zuz.

The one who humiliated him

said to Rabbi Akiva:

Rabbi, give me time,

that is, it is difficult for me to pay the compensation for her humiliation now, and I ask that you grant me permission to pay her at a later time,

and he granted him

Rabbi Akiva

time.

This man knew that this woman was not concerned about her honor, and he waited for an opportunity to demonstrate this and be exempt from the payment.

He waited for her [

he waited] until he saw her

standing

at the entrance to her courtyard,

and he broke the jug in front of her, and in it [

in the jug] there was only

oil worth an issar [

a small quantity of oil, which people bought for an “issar”—eight perutot].

This woman was not concerned about her honor or humiliation, and in order not to lose the oil

she uncovered her head and was wiping

her hands in the oil,

and placing

her

hand on her head,

so that the oil would be absorbed into her hair, after which she would conceal the oil in her home.

He arranged for

that man

against her

witnesses

who would see

her in her degradation and testify against her concerning it.

And he came before Rabbi Akiva

with his witnesses.

He said [

he asked]

to him

that man, to Rabbi Akiva:

Rabbi,

is it possible that

for

this woman

I am to give four hundred zuz!?

After all, this is a disreputable woman, and the humiliation of uncovering her head is not significant to her. Why, then, did you obligate me to pay such a large sum!?

Rabbi Akiva said to him:

Rabbi Akiva:

You have said

and claimed

nothing,

and you are obligated to pay her, even though she is not concerned about her honor, even over a few perutot.

For

one who injures himself, although he is not permitted -

is exempt

he.

But

others who injure him,

even if he is a person who is accustomed to injuring himself,

are obligated

to pay him.

And

so too

one who cuts down his saplings [

young fruit trees],

although he is not permitted

to do so, since he violates “you shall not destroy its trees” [Deuteronomy 20:19], nevertheless

is exempt

he.

But

others

who cut down his saplings

are liable.

Gemara:

We learned in the Mishna: One who strikes another’s ear gives him a sela; Rabbi Yehuda says in the name of Rabbi Yosei HaGelili: He gives him a maneh. There were two types of coins:

Tyrian coins and provincial coins, and the difference between them was the amount of silver they contained: Tyrian coins contained eight times as much silver as provincial coins, and therefore their value was also eight times greater.

They raised a dilemma before them,

the members of the academy were uncertain:

Do

we learn a Tyrian maneh [

did we learn] that one who strikes another gives compensation for humiliation, according to Rabbi Yosei HaGelili]—

or

perhaps

a provincial maneh [

which is worth one-eighth of a Tyrian maneh]

do we learn,

that one who strikes another gives compensation for humiliation?

Come and hear

that “we learn a Tyrian maneh”:

An

incident involving

a certain man who struck his fellow [

there was an incident involving a man who struck his fellow]—

And

he came

the one who struck him for judgment

before Rabbi Yehuda

the Nasi [

the one who struck him came before him for judgment].

He said to him

Rabbi Yehuda the Nasi said to the one who struck him:

Here am I,

and

here is Rabbi Yosei HaGelili [

here am I, and here is Rabbi Yosei HaGelili], and the Gemara proceeds to explain this—

and therefore:

Go, give him

the one who was struck

a Tyrian maneh

as compensation for his humiliation!

Thus

conclude from this: We learn a Tyrian maneh!

And we conclude: Indeed,

conclude from this

from this incident that “we learn a Tyrian maneh.”

The Gemara returns to explain the incident:

The sugya is explained here according to Rashba.

What is the meaning of

“Here am I, and here is Rabbi Yosei HaGelili”,

[what was Rabbi Yehuda the Nasi intending by these words]?

If you say

that

this is what he said to him [

perhaps this was his intention]:

Here am I, who saw you [

here am I, who saw you], that is, I am testifying now before my colleagues that I saw you strike him—

and here is Rabbi Yosei HaGelili, who says, [

and this is the opinion of Rabbi Yosei HaGelili]:

a Tyrian maneh

he is obligated to give as compensation for his humiliation—

and we are judging you and issuing the ruling:

Go, give him a Tyrian maneh [

go, give him a Tyrian maneh]—

If we explain it in this manner, this is difficult:

Does this imply that a witness

who testifies before the court

becomes a judge

to adjudicate that same matter!?

But it was taught:

A Sanhedrin that saw

the

one who killed a person: Some of them become witnesses, and some of them become judges,

that is:

a. The judges do not adjudicate on the basis of their own seeing, but on the basis of testimony, even though they saw the matter themselves. We do not say: “Hearing [the testimony of witnesses by the judges] is no greater than seeing [by the judges themselves].”

b. Those who testify before them do not themselves sit in judgment.

These are the words of Rabbi Tarfon,

and this applies likewise in monetary cases.

Rabbi Akiva says:

Since all the members of the Sanhedrin saw the event, none of them is again fit to judge, because

they are all “witnesses

themselves”

merely by having seen it,

and a witness does not become a judge

in the matter in which he is a witness. This law applies specifically to capital cases, because it is stated with regard to them [Numbers 35:24–25]: “And the assembly shall judge ... and the assembly shall save [that is, the Sanhedrin shall seek grounds in his favor].” But judges who themselves saw the killing can no longer find grounds in his favor.

It is thus clear that

Rabbi Tarfon spoke only up to this point,

namely, that “

some of them become witnesses and some of them become judges,”

but a witness

who testifies

becomes a judge

to adjudicate that same matter—

Rabbi Tarfon did not say this,

for even a witness who knows and sees the event does not adjudicate on the basis of his seeing, and all the more so, a testifying witness does not become a judge—

If so, how are we to explain the intention of Rabbi Yehuda the Nasi, who judged the one who struck another after testifying before the court about the striking!?

And we answer:

When that teaching was stated

that Rabbi Tarfon says that a witness cannot adjudicate on the basis of his seeing, it was only

in a case where they saw him at night, when they were not fit to render judgment

at that time [

because they were not fit to judge at that time]. But during the day he can adjudicate on the basis of his seeing, and one cannot prove from here that a witness who testifies cannot adjudicate.

And if you wish, say

that Rabbi Yehuda’s words should be explained in a manner that avoids the difficulty of how Rabbi Yehuda could be both a witness and a judge:

this is what he said to him

Rabbi Yehuda the Nasi said to that man:

Here am I, who hold in accordance with Rabbi Yosei HaGelili, who says: “

a Tyrian maneh”

the one who struck another pays as compensation for humiliation,

and here are witnesses who testify against you [

and here are witnesses [unclear: the source fragment ends mid-sentence]

Further explanation of the Gemara’s words according to the Rashba, and clarification of the approaches of the Rashbam, the Ramban, and the Ritva in explaining the sugya here: a. The Rashba was astonished: What was accomplished by the Gemara’s answer? It is true that Rabbi Tarfon’s words cannot prove that an eyewitness cannot render judgment on the basis of his seeing, and from this one cannot prove that a witness who testifies cannot become a judge, since Rabbi Tarfon was speaking about a case where they saw the incident at night; nevertheless, Rabbi Tarfon’s words do prove that an actual witness who testifies in court cannot become a judge, for he said: “Some of them became witnesses and some of them became judges.” If a witness who testifies can become a judge, then all of them could be both witnesses and judges. The Rashba rejected the possibility of explaining that Rabbi Yehuda HaNasi was a single expert judge who rendered judgment alone on the basis of his seeing, which had taken place by day, for it is implausible that a single expert judge would render judgment alone and also on the basis of his seeing: “It would be sufficient if the single expert judge rendered judgment on the basis of witnesses, or if judges rendered judgment on the basis of their own seeing, so that hearing would not be greater than seeing; but that the seeing of a single expert judge should be equivalent to hearing testimony from two witnesses is not the law.” On this basis the Rashba explained, “ that the objector had assumed that Rabbi Yehuda HaNasi had actually testified, and that there were no [two] other witnesses; and when he raised an objection from Rabbi Tarfon, he raised it by way of a kal va-chomer, as you wrote .” But the respondent answered him that Rabbi Yehuda HaNasi was not a testifying witness, because there were others present who testified concerning the matter, and a knowledgeable eyewitness can become a judge when others testify before him, as in the case of Rabbi Tarfon. And when he said, “When was that baraita taught? When they saw it at night,” this is what he meant: Rabbi Tarfon said that some of them become witnesses specifically when they saw it at night; but by day, all of them become judges, for an eyewitness who knows and sees can become a judge on the basis of his seeing, even without the testimony of others, and not as you assumed—that one should infer from Rabbi Tarfon that even an eyewitness who knows and sees is disqualified from being a judge on the basis of his own seeing. The explanation of his words is as follows: The respondent answered in accordance with the form of the objector’s question, which had been raised by way of a kal va-chomer—from a witness who sees to a witness who testifies. He therefore rejected the possibility of deriving a ruling concerning an eyewitness from Rabbi Tarfon, because Rabbi Tarfon is dealing with a case where they saw the incident at night, and the reason is not at all “an eyewitness cannot become a judge,” but rather that judgment cannot be rendered at all on the basis of seeing at night; consequently, there is no kal va-chomer.” Nevertheless, according to the truth—and not according to the form of the objector’s question—this alone is insufficient. We must say that [Rabbi Yehuda HaNasi] did not testify at all, so that another difficulty should not arise from the body of the baraita. This answer would have sufficed to reject the question even according to the form of the objector’s question; nevertheless, the respondent stated the actual truth to him. [See further in his words, where he cites a version that does not contain the first answer of the Gemara at all, and writes that this is the correct version.] b. Now, the Rashbam, the Ramban, and the Ritva who explain that seeing at night cannot serve as the basis for judgment because “an eyewitness cannot become a judge,” whereas seeing by day is different, since it is the seeing of “a judge who sees” and not of a witness, must necessarily not be explaining our sugya in accordance with the Rashba. According to the Rashba, the essential point of the respondent’s statement that Rabbi Tarfon was speaking of a case where they saw the incident at night is to say that the reason is not “an eyewitness cannot become a judge,” so that one could infer from it a ruling concerning “a witness who testifies.” But according to their view, even according to the truth, when Rabbi Tarfon is speaking of a case where they saw the incident at night, the reason is that “an eyewitness cannot become a judge” [and only when they saw the incident by day can he render judgment, because that is the seeing of a judge and not the seeing of a witness]. What, then, did the respondent accomplish by establishing Rabbi Tarfon’s words as referring to a case where they saw it at night? [It is possible that they did not have the first answer in our sugya at all, in accordance with the version cited by the Rashba, although the Ritva in Rosh HaShana 25b does have the first answer.] c. And see indeed the wording of the Ritva in Rosh HaShana 25b, where he asked: “For here [in Rosh HaShana], in this sugya, the Talmud explicitly asks that hearing should not be greater than seeing and that an eyewitness can become a judge, whereas in the sugya of the chapter HaHovel it explicitly raises the opposite difficulty, saying: ‘What is this “I”? If it means, “I am the one who saw you,” does this imply that an eyewitness can become a judge?’” It follows from his wording that he does not explain the Gemara, like the Rashba, as having raised its question by way of a kal va-chomer; rather, the Gemara asks why Rabbi Yehuda rendered judgment on the basis of his seeing. This also resolves the Ritva’s words in Ketubot. Nevertheless, the wording of the Ritva in Ketubot—“Rather, certainly this proves that even one who happened to testify cannot become a judge”—requires explanation. Rabbi Tarfon, who disqualifies one who saw the incident at night, agrees that a person who happens to testify is fit to render judgment on the basis of the testimony of others, as he said: “Some of them became witnesses and some of them became judges.” Thus, a witness who happens to testify is fit [to become a judge]. Perhaps his intention there is specifically that he is not fit to testify on the basis of his seeing; the wording requires further clarification. Clarification of the approach of the “Tosafot of Rabbi Peretz”: In the Gemara in Rosh HaShana 26a it is explained that Rabbi Akiva’s statement was made only with regard to capital cases, because it is stated: “And the assembly shall judge, and the assembly shall save.” Once the judges themselves see the killing, they can no longer find merit for the accused in order to save him. For this reason the Rashba wrote that the Gemara’s question was raised only from Rabbi Tarfon, because Rabbi Akiva spoke only with regard to capital cases, which is irrelevant here. But the Tosafot of Rabbi Peretz have a version of the Gemara that reads: “Even Rabbi Tarfon did not say, etc.,” and from this they learned that the question is also raised from Rabbi Akiva. Even Rabbi Tarfon did not say, etc.; and they explained: “Rabbi Akiva distinguishes between monetary cases and capital cases only with regard to eyewitnesses. But with regard to a testifying witness, he agrees that the witness cannot become a judge even in monetary cases. From Rabbi Tarfon we can infer Rabbi Akiva’s view: Rabbi Akiva holds in monetary cases as Rabbi Tarfon holds in capital cases, and they do not disagree in monetary cases” [see there at the end of his words]. It is clear from his words, in the manner of the Rashba, that the Gemara did not cite the baraita to prove that a judge cannot render judgment on the basis of his seeing, but to prove that a “testifying witness” cannot render judgment. Nevertheless, he disagrees with the Rashba concerning the Gemara’s answer. According to the Rashba, in the Gemara’s answer Rabbi Yehuda did not render judgment on the basis of his seeing. But in the Tosafot of Rabbi Peretz he wrote: “But here, in the case of that man concerning Rabbi Yehuda HaNasi, they saw him by day and could immediately render judgment on the basis of their seeing; therefore, he becomes a judge.” It is possible that Rabbi Peretz does not mean that initially the Gemara thought that Rabbi Yehuda had testified before others, and that in its answer the Gemara said that he had not testified. Rather, even initially the Gemara thought that he himself rendered judgment on the basis of his seeing; but every judge who renders judgment on the basis of his seeing is like a “testifying witness,” since he renders judgment on the basis of his own testimony. Therefore, the Gemara asks from the law concerning “a testifying witness” concerning a judge who renders judgment on the basis of his seeing. Clarification of Rashi’s approach in our sugya: Rashi wrote, according to the Gemara’s answer, that Rabbi Yehuda holds like Rabbi Tarfon. The Tosafot were astonished by this, since Rabbi Akiva is entirely irrelevant here, as he stated his position only with regard to capital cases ; and Rashi’s approach in particular will be explained in the notes later in the sugya. Nevertheless, we learn from Rashi’s words that he does not explain the matter like the Rashba: according to the Gemara’s answer, Rabbi Yehuda rendered judgment on the basis of the testimony of others. For if so, why must it be said that Rabbi Yehuda holds like Rabbi Tarfon? According to the Gemara’s answer, there is no necessity at all to say that Rabbi Yehuda himself saw the incident; if so, why should he not render judgment? It must therefore be that, according to the Gemara’s answer, Rabbi Yehuda rendered judgment on the basis of what he had seen by day—and this is impossible according to Rabbi Akiva. Clarification of Rashi’s approach in Rosh HaShana: In the Gemara in Rosh HaShana [25b], concerning the case where three saw the new moon and they were the court, the Gemara asks: “Should hearing not be greater than seeing?”—why, then, is testimony necessary at all?—and answers: This is referring to a case where they saw it at night. Rashi explained there: “That hearing, which they hear from the mouths of witnesses, should not be greater than seeing, for concerning testimony about the new month it is not written ‘testimony,’ but rather ‘See this and sanctify [the month].’” The Tosafot there were astonished by him on the basis of our sugya, for our sugya indicates that with regard to all testimony we say, “Hearing should not be greater than seeing.” The explanation is as follows: Whether according to the Rashba’s interpretation or according to that of the Tosafot of Rabbi Peretz, it is clear from our sugya that Rabbi Tarfon did not say that an eyewitness cannot render judgment on the basis of his seeing except when he saw the incident at night; but by day he can render judgment on the basis of his seeing. The Ritva wrote there [and this is also the position of the Nimukei Yosef here, although he abbreviated it] that Rashi came to reconcile the matters as follows: “For here, in this sugya, the Talmud explicitly asks that hearing should not be greater than seeing and that an eyewitness can become a judge, whereas in the sugya of the chapter HaHovel it explicitly raises the opposite difficulty, saying: ‘What is this “I”? If it means, “I am the one who saw you,” does this imply that an eyewitness can become a judge?’ And our master, of blessed memory, came to explain that here the Talmud understood that with regard to the sanctification of the new month, since it is written, ‘See this and sanctify [the month],’ hearing is not greater than seeing; but there, where testimony is required, it raised the opposite question: How can an eyewitness become a judge?” That is, with regard to the sanctification of the new month, the initial assumption is that one can render judgment on the basis of one’s seeing, because of “See this and sanctify”; whereas with regard to other testimony, the initial assumption is that one cannot render judgment on the basis of one’s seeing. Nevertheless, there is a major innovation in the Ritva’s words. The plain meaning of Rashi’s words indicates that with regard to other testimony we do not say, “Hearing should not be greater, etc.,” because seeing is not hearing and testimony. According to the Ritva’s words, however, it emerges that with regard to other testimony we do not say, “Hearing should not be greater, etc.,” because “an eyewitness cannot become a judge,” for our sugya based its question on the law that “an eyewitness cannot become a judge.” “But ultimately, certainly, we do not distinguish between them; in all cases, the testimony need not be formally presented, and hearing is not greater than seeing, as we established there, that the case is one where they saw it at night.” Nevertheless, Rashi’s words in that sugya still apparently contradict our sugya. For later the Gemara there cites the baraita of Rabbi Tarfon and Rabbi Akiva, and Rashi explains Rabbi Tarfon’s words there as follows: “Some of them become witnesses, and they testify before their colleagues, for with regard to capital cases [and likewise monetary cases, other than testimony concerning the sanctification of the new month], testimony is required, as it is written: ‘By the mouth of two witnesses shall the one who is to die be put to death’; ‘he shall not be put to death,’ etc.” On the surface, Rashi’s words contradict both the question of the Gemara in our sugya and its answer. According to the Gemara’s question, Rabbi Tarfon’s reason is that “an eyewitness cannot become a judge,” whereas Rashi gives a different reason. This difficulty is resolved according to the Ritva, for according to him Rashi’s intention too is based on the principle that “an eyewitness cannot become a judge.” But Rashi’s words are certainly contradicted by the Gemara’s answer, for in the answer in our sugya Rabbi Tarfon spoke only of a case where they saw the incident at night, whereas Rashi did not explain it in this manner. This requires further study. Others testify against you that you sounded [the shofar], and if so:

Go and give him a maneh of Tzuri [that is, go and give him a Tzuri maneh], and if so, Rabbi Yehuda was only a judge and not a witness.

Go out and give him a silver maneh.] If so, Rabbi Yehuda was only a judge and not a witness.

The Gemara asks:

And

is it so that

Rabbi Akiva holds that

in capital cases

an eyewitness—

even though he did not testify—

cannot become a judge

to render judgment in this matter, even on the basis of the testimony of others!?

And it was taught in a baraita:

It is written [Exodus 21:18]: “And when men quarrel

and one strikes his fellow with a stone or with a fist,

and he does not die but falls into bed. If he rises and walks outside on his support, then the one who struck him shall be absolved; he shall nevertheless give for his loss of work, and shall provide for his complete healing”:

Shimon HaTemani says:

The verse teaches that it equated a stone with a fist:

Just as a fist is a specific object that is handed over to the court

court]

and to witnesses,

meaning, one can bring it before the court so that they can assess whether this fist was capable of producing the result that it produced, and if it becomes clear that it was not capable of doing so, he is exempt, because we attribute what happened to the injured party to this person’s weakness and softness. Everything else that he struck him with entails liability only if it is submitted to the court and the witnesses

that is, if the witnesses and the court can assess its potential lethality; and the verse came to exclude:

except for a stone that left the witnesses’ possession

, meaning, except for striking with a stone that witnesses saw but which was lost from their possession, so that the court cannot assess it, and the assailant is not liable, because the assessment must be performed specifically by the court.

Rabbi Akiva said to him

to dispute his words, according to which he required the assessment to be performed specifically by the court:

Did he really

strike him with a fist

in the presence of a court, so that they know

the court:

how many

blows

he struck him

so that they could assess it—

and what

[which of his limbs]

did he strike him on, whether on his shins or on his vital organ

[the lobe opposite the heart, which is easily injured there]!? If so, even a fist is submitted only to the witnesses, who know all this; so how can we learn from here: “except for a stone that left the witnesses’ possession”?

If one pushed another from the roof or

And furthermore, if it is as you say, that the court itself must perform the assessment:

if one pushed another from the roof or

from the top of a building [a house], and he died, and would the

court go to the building, or would the building go to the court!?

That is: Did the Torah require the court to leave the Chamber of Hewn Stone—the place where the Sanhedrin sits—in order to see the building and assess it? Or perhaps they would bring the building to the court so that it could assess whether a fall from it was capable of causing injury? Certainly the Torah did not say this; therefore, an assessment by the court is not required.

And furthermore:

would

if the building fell

before the court came to see it, would it

be rebuilt

so that they could assess it!?

Just as a fist is an object entrusted to the witnesses,

Rather—said Rabbi Akiva—this is what you should learn from the comparison of a stone to a fist:

Just as a fist is uniquely submitted to the court and the witnesses,

because it is not possible for the fist to be lost,

so too, anything that is submitted to the witnesses

[even if it is not submitted to the court]; and this teaches:

except when a stone left the possession of the assailant and was lost before the witnesses saw it, in which case he is

exempt.

The Gemara proves from this beraita that even according to Rabbi Akiva, a witness who observes an event may judge on the basis of the testimony of other witnesses, for

in any event, it teaches

in the beraita:

Rabbi Akiva said to him: Did he strike him in the presence of a court that knows how many blows he struck him—

It follows:

if he struck him in their presence

that is, he is a witness to the matter—

a witness becomes a judge

to judge on the basis of others’ testimony. But this is difficult: Rabbi Akiva maintains that a witness does not become a judge in capital cases!?

And we answer: Rabbi Akiva—who said, “Was he struck in the presence of the court?”—

was speaking according to the position of Rabbi Shimon HaTemani,

with whom he disagreed, for Rabbi Shimon HaTemani holds that even in capital cases, a witness who saw the event may judge.

And we answer: Rabbi Akiva, who stated, “Did he strike him in the presence of a court,”

was speaking according to Rabbi Shimon the Timnite’s position,

who disagrees with him and maintains that even in capital cases, a witness who saw the event may judge;

but as for him

—Rabbi Akiva— he does not maintain this. The Sages taught: A harmless ox that killed

a person, and is liable to be stoned,

and

afterward

caused damage:

—the ox—

in a capital case

in order to stone it,

They judge it

—the ox—

according to capital law

to stone it,

but they do not judge it according to monetary law, for a harmless ox pays only from its own body, and it is to be stoned. An ox accustomed to goring that killed

a person, and is liable to be stoned,

and

afterward

caused damage:

They judge it

first

according to monetary law,

for it pays from the owner’s other property.

And they return and judge it according to capital law,

to stone it.

But if

the court preceded

and

judged it according to capital law,

then

they do not return and judge it according to monetary law,

as the reason is explained below.

We challenge this:

And if they preceded and judged it according to capital law, what of it

[what difference does that make]!? It is still possible

to return and judge it

—the ox accustomed to goring—

according to monetary law

[to judge it again according to monetary law]!?

Rava said: I found the scholars of the academy of Rav sitting and saying [I found the scholars of the academy sitting and saying] as the explanation of the beraita: Whose opinion is this —this beraita— It is Rabbi Shimon the Timnite’s, who said: Just as a fist is uniquely submitted to the court and the witnesses,

And if they preceded and judged it in capital cases, what of it [

what difference does it make]!? Still,

let us return and judge it

the forewarned ox

in monetary cases [

let them return and judge it in monetary cases]!?

Rava said: I found the scholars of the academy of Rav sitting and saying [

I found the scholars of the academy sitting and saying] as the reason for the beraita:

Whose view is this—

this beraita—

It is Rabbi Shimon the Temanite’s, who said: Just as a particular fist is available to the assembly and to the witnesses,