Babylonian Talmud: Tractate Baba Kamma

Folio 84a

how could capital punishment be applied in the case of a dwarf killing a giant or a giant killing a dwarf,¹  seeing that the Torah says, Ye shall have one manner of law, implying that the manner of law should be the same in all cases, unless you say that for a life taken away the Divine Law ordered the life of the murderer to be taken away?²  Why then not similarly say here too that for eyesight taken away the Divine Law ordered eyesight to be taken away from the offender?

Another [Baraitha] taught: R. Simon b. Yohai says: 'Eye for eye' means pecuniary compensation. You say pecuniary compensation, but perhaps it is not so, but actual retaliation [by putting out an eye] is meant? What then will you say where a blind man put out the eye of another man, or where a cripple cut off the hand of another, or where a lame person broke the leg of another? How can I carry out in this case [the principle of retaliation of] 'eye for eye', seeing that the Torah says, Ye shall have one manner of law, implying that the manner of law should be the same in all cases? I might rejoin: What is the difficulty even in this case? Why not perhaps say that it is only where it is possible [to carry out the principle of retaliation that] it is to be carried out, whereas where it is impossible, it is impossible, and the offender will have to be released altogether? For if you will not say this, what could be done in the case of a person afflicted with a fatal organic disease killing a healthy person?³  You must therefore admit that it is only where it is possible [to resort to the law of retaliation] that it is resorted to, whereas where it is impossible, it is impossible, and the offender will have to be released.

The School of R. Ishmael taught: Scripture says: So shall it be given to him again.⁴  The word 'giving' can apply only to pecuniary compensation. But if so, would the words, As he hath [given a blow that] caused a blemish,⁴  similarly refer to money?⁵  — It may be replied that at the School of R. Ishmael this text was expounded as a superfluous verse; since it has already been written, And if a man maim his neighbour,' as he hath done so shall it be done to him.⁶  Why after this do we require the words, so shall it be given to him again? It must, therefore refer to pecuniary compensation. [But still,] why the words, as he hath [given a blow that] caused a blemish in a man? Since it was necessary to write, so shall it be given to him again,⁷  the text also writes, as he hath [given a blow that] caused a blemish in a man.

The School of R. Hiyya taught: Scripture says, Hand in hand,⁸  meaning an article which is given from hand to hand, which is of course money. But could you also say the same regarding the [next] words, foot in foot? — It may be replied that at the School of R. Hiyya this text was expounded as a superfluous verse, for it has already been written: Then shall ye do unto him as he had purposed to do unto his brother.⁹  If then you assume actual retaliation [for injury], why do I require the words, hand in hand? This shows that it means pecuniary compensation. But still, why the words, foot in foot? — Having written 'hand in hand', the text also wrote 'foot in foot'.⁸

Abbaye said: [The principle of pecuniary compensation] could be derived from the teaching of the School of Hezekiah. For the School of Hesekiah taught: Eye for eye, life for life,¹⁰  but not 'life and eye for eye'. Now if you assume that actual retaliation is meant, it could sometimes happen that eye and life would be taken for eye, as while the offender is being blinded, his soul might depart from him. But what difficulty is this? perhaps what it means is that we have to form an estimate,¹¹  and only if the offender will be able to stand it will retaliation be adopted, but if he will not be able to stand it, retaliation will not be adopted? And if after we estimate that he would be able to stand it and execute retaliation it so happens that his spirit departs from him, [there is nobody to blame,] as if he dies, let him die. For have we not learnt regarding lashes: 'Where according to estimation he¹²  should be able to stand them, but it happened that he died under the hand of the officer of the court, there is exemption [from any blame of manslaughter]'.¹³

R. Zebid said in the name of Raba: Scripture says, Wound for wound.¹⁴  This means that compensation is to be made for pain even where Depreciation [is separately compensated].¹⁵  Now, if you assume that actual Retaliation is meant, would it not be that just as the plaintiff suffered pain [through the wound], the offender too would suffer pain through the mere act of retaliation?¹⁶  But what difficulty is this? Why, perhaps, not say that a person who is delicate suffers more pain whereas a person who is not delicate does not suffer [so much] pain, so that the practical result [of the Scriptural inference] would be to pay for the difference [in the pain sustained]!

R. Papa in the name of Raba said: Scripture says, To heal, shall he heal;¹⁷  this means that compensation is to be made for Healing even where Depreciation [is compensated separately]. Now, if you assume that Retaliation is meant, would it not be that just as the plaintiff needed medical attention, the defendant also would surely need medical attention [through the act of retaliation]? But what difficulty is this? Why perhaps not say that there are people whose flesh heals speedily while there are others whose flesh does not heal speedily, so that the practical result [of the Scriptural inference] would be to require payment for the difference in the medical expenses!

R. Ashi said: [The principle of pecuniary compensation] could be derived from [the analogy of the term] 'for' [occurring in connection with Man] with the term 'for' occurring in connection with Cattle. It is written here, 'Eye for eye,' and it is also written there, he shall surely pay ox for ox.¹⁸  [This indicates that] just as in the latter case it is pecuniary compensation that is meant, so also in the former case it means pecuniary compensation. But what ground have you for comparing the term 'for' with 'for' [mentioned in connection] with cattle, rather than with the 'for' [mentioned in connection] with [the killing of] man, as it is written, thou shalt give life for life,¹⁹  so that, just as in the case of murder it is actual Retaliation, so also here it means actual Retaliation? — It may be answered that it is more logical to infer [the law governing] injury from [the law governing another case of] injury¹⁸  than to derive [the law of] injury from [the law applicable in the case of] murder.¹⁹  But why not say on the contrary, that it is more logical to derive [the law applying to] Man from [a law which similarly applies to] Man¹⁹  than to derive [the law applying to] Man from [that applying to] Cattle? — R. Ashi therefore said: It is from the words for he hath humbled her,²⁰  that [the legal implication of 'eye for eye'] could be derived by analogy, as [the law in the case of] Man is thus derived from [a law which is similarly applicable to] Man, and the case of injury from [a similar case of] injury.

It was taught: R. Eliezer said: Eye for eye literally refers to the eye [of the offender]. Literally, you say? Could R. Eliezer be against all those Tannaim [enumerated above]?²¹  — Raba thereupon said: it only means to say that the injured person would not be valued as if he were a slave.²²  Said Abaye to him: How else could he be valued? As a freeman? Could the bodily value of a freeman be ascertained by itself? — R. Ashi therefore said: It means to say that the valuation will be made not of [the eye of] the injured person but of [that of] the offender.²³

An ass once bit off the hand of a child. When the case was brought before R. Papa b. Samuel he said [to the sheriffs of the court], 'Go forth and ascertain the value of the Four items.'²⁴  Said Raba to him: Have we not learnt Five [items]? — He replied: I did not include Depreciation. Said Abaye to him: Was not the damage in this case done by an ass, and in the case of an ass [injuring even man] there is no payment except for Depreciation?²⁵  — He therefore ordered [the sheriffs], 'Go forth and make valuation of the Depreciation.' But has not the injured person to be valued as if he were a slave? — He therefore said to them, 'Go forth and value the child as if it were a slave.' But the father of the child thereupon said, 'I do not want [this method of valuation], as this procedure is degrading.' They, however, said to him, 'What right have you to deprive the child of the payment which would belong to it?'²⁶  He replied, 'When it comes of age I will reimburse it out of my own.

An ox once chewed the hand of a child. When the case was brought before Raba, he said [to the sheriffs of the court], 'Go forth and value the child as if it were a slave.' They, however, said to him, 'Did not the Master [himself] say that payment for which the injured party would have to be valued as if he were a slave,²⁷  cannot be collected in Babylon?'²⁸  — He replied, 'My order would surely have no application except in case of the plaintiff becoming possessed of property belonging to the defendant.'²⁹  Raba thus follows his own principle, for Raba said: Payment for damage done to chattel by Cattle³⁰  or for damage done to chattel by Man can be collected even in Babylon,³¹  whereas payment for injuries done to man by Man or for injuries done to man by Cattle cannot be collected in Babylon. Now, what special reason is there why payment for injuries done to man by Cattle cannot [be collected in Babylon] if not because it is requisite [in these cases that the judges be termed] Elohim,³²  [a designation] which is lacking [in Babylon]? Why then should the same not be also regarding payment for [damage done] to chattel by Cattle or to chattel by Man, where there is similarly

1. Where the bodies of the murderer and the murdered are not alike.
2. Without considering the weights and sizes of the respective bodies.
3. In which case the murderer could not be convicted by the testimony of witnesses; v. Sanh. 78a.
4. Lev. XXIV. 20.
5. Which could of course not be maintained.
6. Ibid. 19.
7. To indicate that pecuniary compensation is to be paid.
8. Deut. XIX, 21. (E.V.: Hand for hand, foot for foot.)
9. Ibid. 19.
10. Ex. XXI, 24.
11. Whether the offender would stand the operation or not.
12. Who is subject to the thirty-nine lashes for having transgressed a negative commandment.
13. Mak. III. 14.
14. Ex. XXI, 25.
15. V. supra 26b.
16. How then could there he extra compensation for pain?
17. Ex. XXI, 19. (E.V.: shall cause him to be thoroughly healed.)
18. Ibid. 36.
19. Ibid. 23.
20. Deut.XXII, 29.
21. Proving against Retaliation.
22. In the manner described supra p. 473.
23. As the pecuniary compensation in this case is a substitution for Retaliation.
24. Enumerated supra p. 473.
25. V. supra 26a.
26. Cf, infra 87b.
27. I.e., where the damages could otherwise not be ascertained.
28. Because the judges there have not been ordained as Mumhe (v. Glos.) who alone were referred to by the Scriptural term Elohim standing for 'judges' as in Ex. XXI, 6 and XXII, 7-8, and who alone were qualified to administer penal justice; cf. Sanh. 2b, 5a, and 14a and supra p. 144.
29. Cf. supra p. 67.
30. Lit., 'ox'.
31. As these matters are of a purely civil nature and of frequent occurrence, as brought out by the discussion which follows.
32. As in Ex. XXI, 6 and XXII, 7-8.

required the designation of Elohim which is lacking [in Babylon]? But if on the other hand the difference in the case of chattel [damaged] by Cattle or chattel [damaged] by Man is because we [in Babylon] are acting merely as the agents [of the mumhin¹  judges in Eretz Yisrael] as is the practice with matters of admittances and loans,²  why then in the case of man [injured] by Man or man [injured] by Cattle should we similarly not act as their agents as is indeed the practice with matters of admittances and loans?²  — It may, however, be said that we act as their agents only in regard to a matter of payment which we can fix definitely, whereas in a matter of payment which we are not able to fix definitely [but which requires valuation] we do not act as their agents. But I might object that [payment for damage done] to chattel by Cattle or to chattel by Man we are similarly not able to fix definitely, but we have to say, 'Go out and see at what price an ox is sold on the market place.' Why then in the case of man [injured] by Man, or man [injured] by Cattle should you not similarly say, 'Go out and see at what price slaves are sold on the market place'? Moreover, why in the case of double payment³  and four-fold or five-fold payment⁴  which can be fixed precisely should we not act as their agents?⁵  — It may, however, be said that we may act as their agents only in matters of civil liability, whereas in matters of a penal nature⁶  we cannot act as their agents. But why then regarding payment [for an injury done] to man by Man which is of a civil nature should we not act as their agents? — We can act as their agents only in a matter of frequent occurrence, whereas in the case of man injured by Man which is not of frequent occurrence we cannot act as their agents. But why regarding Degradation,⁷  which is of frequent occurrence, should we not act as their agents? — It may indeed be said that this is really the case, for R. Papa ordered four hundred zuz to be paid for Degradation. But this order of R. Papa is no precedents for when R. Hisda sent to consult R. Nahman [in a certain case] did not the latter send back word, 'Hisda, Hisda, are you really prepared to order payment of fines in Babylon?'⁸  — It must therefore be said that we can act as their agents only in a matter which is of frequent occurrence and where actual monetary loss is involved,⁹  whereas in a matter of frequent occurrence but where no actual monetary loss is involved, or again in a matter not of frequent occurrence though where monetary loss is involved we cannot act as their agents. It thus follows that in the case of man [injured] by Man, though there is there actual monetary loss, yet since it is not of frequent occurrence we cannot act as their agents, and similarly in respect of Degradation, though it is of frequent occurrence, since it involves no actual monetary loss, we cannot act as their agents.

Is payment for damage done to chattel by Cattle really recoverable in Babylon? Has not Raba said: 'If Cattle does damage, no payment will be collected in Babylon'?¹⁰  Now, to whom was damage done [in this case stated by Raba]? If we say to man, why then only in the case of Cattle injuring man?¹¹  Is it not the fact that even in the case of Man injuring man¹²  payment will not be collected in Babylon? It must therefore surely refer to a case where damage was done to chattel and it was nevertheless laid down that no payment would be collected in Babylon!¹³  — It may, however, be said that that statement referred to Tam,¹⁴  whereas this statement deals with Mu'ad.¹⁵  But did Raba not say that there could be no case of Mu'ad¹⁶  in Babylon? — It may, however, be said that where an ox was declared Mu'ad there [in Eretz Yisrael]¹⁷  and brought over here [in Babylon, there could be a case of Mu'ad even in Babylon] — But surely this¹⁸  is a matter of no frequent occurrence, and have you not stated that in a matter not of frequent occurrence we cannot act as their agents? — [A case of Mu'ad could arise even in Babylon] where the Rabbis of Eretz Yisrael came to Babylon and declared the ox Mu'ad here. But still, this also is surely a matter of no frequent occurrence,¹⁹  and have you not stated that in a matter not of frequent occurrence we cannot act as their agents? — Raba must therefore have made his statement [that payment will be collected even in Babylon where chattel was damaged by Cattle] with reference to Tooth and Foot which are Mu'ad ab initio.

PAIN: — IF HE BURNT HIM EITHER WITH A SPIT OR WITH A NAIL, EVEN THOUGH ON HIS [FINGER] NAIL WHICH IS A PLACE WHERE NO BRUISE COULD BE MADE etc. Would Pain be compensated even in a case where no depreciation was thereby caused? Who was the Tanna [that maintains such a view]? Raba replied: He was Ben 'Azzai, as taught: Rabbi said that 'burning'²⁰  without bruising is mentioned at the outset, whereas Ben 'Azzai said that [it is with] bruising [that it] is mentioned at the outset. What is the point at issue between them? Rabbi holds that as 'burning' implies even without a bruise, the Divine Law had to insert 'bruise',²¹  to indicate that it is only where the burning caused a bruise that there would be liability,²²  but if otherwise this would not be so,²³  whereas Ben 'Azzai maintained that as 'burning' [by itself] implied a bruise, the Divine Law had to insert 'bruise' to indicate that 'burning' meant even without a bruise.²⁴  R. Papa demurred: On the contrary, it is surely the reverse that stands to reason:²⁵  Rabbi who said that 'burning', [without bruising] is mentioned at the outset holds that as 'burning,' implies also a bruise, the Divine Law inserted 'bruise' to indicate that 'burning,' meant even without a bruise,²⁶  whereas Ben 'Azzai who said that [it was] with bruising [that it] was mentioned at the outset maintains that as 'burning' implies even without a bruise, the Divine Law purposely inserted 'bruise' to indicate that it was only where the 'burning' has caused a bruise that there will be liability, but if otherwise this would not be so; for in this way they²⁷  would have referred in their statements to the law as it stands now in its final form. Or, alternatively, it may be said that both held that 'burning' implies both with a bruise and without a bruise, and here

1. V. Glos. s.v. Mumhe.
2. For which cf. Sanh. (Sonc. ed.) p. 4, n. 3.
3. For theft.
4. For having slaughtered or sold the stolen sheep and ox respectively.
5. Why then should these not be adjudicated and collected in Babylon?
6. As is the case with double payment and four-fold or five-fold payment.
7. [Omitting with MS.M. 'blemish' paid in case of rape, and occurring in cur. edd.]
8. Cf. supra 27b.
9. Excluding thus a loss of mere prospective profits.
10. V. supra p. 481, n. 5.
11. Which is of no frequent occurrence at all.
12. Which is of slightly more frequent occurrence.
13. This contradicts the statement made by the same Raba (supra p. 481) that payment for damage done to chattel by Cattle will be collected even in Babylon.
14. In which case the payment is of a penal nature (as decided supra p. 67), which cannot be collected in Babylon.
15. Where the payment is of a strictly civil nature, and accordingly collected even in Babylon.
16. Regarding damage done by Horn, for since for the first three times of goring no penalty could be imposed in Babylon, the ox could never be declared Mu'ad.
17. Where the judges are Mumhin and thus qualified to administer also penal justice.
18. I.e., to bring over an ox already declared Mu'ad in Eretz Yisrael to Babylon.
19. Cf. Keth. 110b.
20. Ex. XXI, 25.
21. Ibid.
22. For the payment of Pain.
23. I.e., Pain would not be compensated since no depreciation was thereby caused.
24. Pain would therefore even in this case be compensated in accordance with Ben 'Azzai who could thus be considered to have been the Tanna of the Mishnaic ruling.
25. That the Tanna of the Mishnaic ruling was most probably Rabbi and not his opponent, and moreover the statements made by Rabbi and Ben 'Azzai should be taken to give the final implication of the law and not as it would have been on first thoughts.
26. So that Pain will be paid even in this case according to Rabbi who was the Tanna of the Mishnaic ruling.
27. I.e., Rabbi and Ben 'Azzai.