Babylonian Talmud: Tractate Baba Kamma

Folio 85a

they were differing on the question of a generalisation and a specification placed at a distance from each other,¹  Rabbi maintaining that in such a case the principle of a generalisation followed by a specification does not apply,²  whereas Ben 'Azzai maintained that the principle of a generalisation followed by a specification does apply.³  And should you ask why, according to Rabbi, was it necessary to insert 'bruise',⁴  [the answer would be that it was necessary to impose the payment of] additional money.⁵

IT HAS TO BE CALCULATED HOW MUCH A MAN OF EQUAL STANDING WOULD REQUIRE TO BE PAID TO UNDERGO SUCH PAIN. But how is pain calculated in a case where Depreciation [also has to be paid]?⁶  — The father of Samuel⁷  replied: We have to estimate how much a man would require to be paid to have his arm cut off. To have his arm cut off? Would this involve only Pain and not also all the Five Items?⁸  Moreover, are we dealing with fools [who would consent for any amount to have their arm cut off]? — It must therefore refer to the cutting off of a mutilated arm.⁹  But even [if the calculation be made on the basis of] a mutilated arm, would it amount only to Pain and not also to Pain plus Degradation, as it is surely a humiliation that a part of the body should be taken away and thrown to dogs? — It must therefore mean that we estimate how much a man whose arm had by a written decree of the Government to be taken off by means of a drug would require that it should be cut off by means of a sword. But I might say that even in such a case no man would take anything [at all] to hurt himself [so much]? — It must therefore mean that we have to estimate how much a man whose arm had by a written decree of the Government to be cut off by means of a sword would be prepared to pay that it might be taken off by means of a drug. But if so, instead of TO BE PAID should it not be written 'to pay'? — Said R. Huna the son of R. Joshua: It means that payment to the plaintiff will have to be made by the offender to the extent of the amount which the person sentenced would have been prepared to pay.

'HEALING': — IF HE HAS STRUCK HIM HE IS UNDER OBLIGATION TO PAY MEDICAL EXPENSES etc. Our Rabbis taught: Should ulcers grow on his body as a result of the wound and¹⁰  the wound break open again, he has still to heal him and is liable to pay him for Loss of Time, but if it was not caused through the wound he has not to heal him and need not pay him for Loss of Time. R. Judah, however, said that even if it was caused through the wound, though he has to heal him, he has not to pay him for Loss of Time. The Sages said: The Loss of Time and Healing [are mentioned together in Scripture:]¹¹  Wherever there is liability for Loss of Time there is liability for Healing but wherever there is no liability for Loss of Time there is no liability for Healing. In regard to what principle do they¹²  differ? — Rabbah said: 'I found the Rabbis at the School of Rab sitting and saying¹³  that the question whether [or not] a wound may be bandaged¹⁴  [by the injured person] was the point at issue. The Rabbis¹⁵  maintained that a wound may be bandaged, whereas R. Judah maintained that a wound may not be bandaged, so that [it was only] for Healing of which there is a double mention in Scripture¹⁶  that there is liability,¹⁷  but for Loss of Time of which there is no double mention in Scripture there is no liability. I, however, said to them that if a wound may not be bandaged there would be no liability even for Healing.¹⁸  We must therefore say that all are agreed that a wound may be bandaged, but not too much; R. Judah held that since it may not be bandaged too much [it is only] for Healing of which there is a double mention in Scripture that there will be liability, but for Loss of Time of which there is no double mention in Scripture there will be no liability, whereas the Rabbis maintained that since Scripture made a double mention of healing there will be liability also for Loss of Time which is compared to Healing. R. Judah, however, maintained that there will be no liability for Loss of Time as Scripture excepted this by [the term] 'only';¹¹  to which the Rabbis¹⁹  might rejoin that 'only' [was intended to exclude the case] where the ulcers that grew were not caused by the wound. But according to the Rabbis mentioned last²⁰  who stated that whenever there is liability for Loss of Time there is liability for Healing, whereas where there is no liability for loss of Time there could be no liability for Healing — why do I require the double mention of Healing? — This was necessary for the lesson enunciated by the School of R. Ishmael, as taught: 'The School of R. Ishmael taught: [The words] "And to heal he shall heal"²¹  [are the source] whence it can be derived that authorisation was granted [by God] to the medical man to heal.'²²

Our Rabbis taught: Whence can we learn that where ulcers have grown on account of the wound and²³  the wound breaks open again, the offender would still be liable to heal it and also pay him for [the additional] Loss of Time? Because it says: Only he shall pay for the loss of his time and to heal he shall heal.²⁴  [That being so, I might say] that this is so even where the ulcers were not caused by the wound. It therefore says further 'only'. R. Jose b. Judah, however, said that even where they were caused by the wound he would be exempt, since it says 'only'. Some say that [the view of R. Jose that] 'even where they were caused by the wound he would be exempt' means altogether from any [liability whatsoever],²⁵  which is also the view of the Rabbis mentioned last. But others say that even where they were caused by the wound he would be exempt means only from paying for additional Loss of Time, though he would be liable for Healing. With whom [would R. Jose b. Judah then be concurring in his statement]? With his own father.²⁶

The Master stated: '[In that case I might say] that this is so even where the ulcers were not caused by the wound. It therefore says further "only".' But is a text necessary to teach [that there is exemption] in the case where they were caused not by the wound?²⁷  — It may be replied that what is meant by 'caused not by the wound' is as taught: 'If the injured person disobeyed his medical advice and ate honey or any other sort of sweet things, though honey and any other sort of sweetness are harmful to a wound, and the wound in consequence became gargutani [scabby], it might have been said that the offender should still be liable to [continue to] heal him. To rule out this idea it says "only".'²⁸  What is the meaning of gargutani? — Abaye said: A rough seam.²⁹  How can it be cured? — By aloes, wax and resin.

If the offender says to the injured person: 'I can personally act as your healer',³⁰  the other party can retort 'You are in my eyes like a lurking lion.'³¹  So also if the offender says to him 'I will bring you a physician who will heal you for nothing', he might object, saying 'A physician who heals for nothing is worth nothing.' Again, if he says to him 'I will bring you a physician from a distance', he might say to him, 'If the physician is a long way off, the eye will be blind [before he arrives].'³²  If, on the other hand, the injured person says to the offender, 'Give the money to me personally as I will cure myself', he might retort 'You might neglect yourself and thus get from me too much.' Even if the injured person says to him, 'Make it a fixed and definite sum', he might object and say, 'There is all the more danger that you might neglect yourself [and thus remain a cripple], and I will consequently be called "A harmful ox."'

A Tanna taught: 'All [the Four Items]³³  will be paid [even] in the case where Depreciation [is paid independently].' Whence can this ruling be deduced? — Said R. Zebid in the name of Raba: Scripture says: Wound for wound,³⁴  to indicate the payment of pain even in the case where Depreciation [is paid independently].³⁵  But is not this verse required

1. Such as here the term 'hurts' which is a generalisation as it implies all kinds of burning whether with a bruise or without a bruise, and the term 'bruise' which specifies an injury with a bruise, are separated from each other by the intervening clause 'wound for wound'.
2. To render the generalisation altogether ineffective; cf supra p. 371.
3. Even in such a case.
4. Since the term 'burning' is a generalisation and by itself implies both with a bruise and without a bruise.
5. I.e., for Depreciation as explained by Rashi, or for the Pain where the burning left a mark and thus aggravated the ill feeling (Tosaf ).
6. Such as where an arm was cut off and Depreciation had already been paid.
7. Abba b. Abba.
8. Whereas the problem raised deals with a case where the other items have already been paid for.
9. Which is still attached to the body but unable to perform any work.
10. [Maim. Yad, Hobel, II, 19 reads 'or'.]
11. Ex. XXI, 19.
12. I.e., R. Judah and the other Rabbis.
13. In the name of Rab; cf. Suk. 17a.
14. To prevent the cold from penetrating the wound though the bandage may cause swelling through excessive heat.
15. In opposing R. Judah.
16. Ex. XXI, 19 lit., 'to heal he shall heal'.
17. Though the plaintiff had no right to bandage the wound which caused the ulcers to grow.
18. Since the plaintiff would be to blame for the ulcer that grew through the bandage if he had no right to put it on.
19. I.e., the first Tanna.
20. Under the name of Sages.
21. Cf. p. 487, n. 6.
22. And it is not regarded as 'flying in the face of Heaven'; v. Ber. 60a.
23. V. p. 486, n. 5.
24. Ex. XXI, 19.
25. Even from Healing.
26. I.e., R. Judah who orders payment for Healing but not for Loss of Time.
27. Why indeed would liability have been suggested?
28. Implying that the liability is qualified and thus excepted in such and similar cases.
29. Rashi: 'wild flesh'.
30. And need thus not employ a medical man.
31. I.e., 'I am not prepared to trust you'; cf. B.M. 101; B.B. 168a.
32. [So S. Strashun; Rashi: 'If the physician is from far he might blind the eye'; others: 'A physician from afar has a blind eye'. i.e., he is little concerned about the fate of his patient.]
33. I.e., Pain, Healing, Loss of Time, and Degradation.
34. Ex. XXI, 25.
35. Supra 26b.

to extend liability [for Depreciation] to the case of inadvertence equally with that of willfulness, and to the case of compulsion equally with that of willingness? — If so [that it was required only for such a rule] Scripture would have said 'Wound in the case of wound'; why [say] '… for wound', unless to indicate that both inferences are to be made from it?¹  R. Papa said in the name of Raba: Scripture says And to heal shall he heal,²  [thus enjoining] payment for Healing even in the case where Depreciation is paid independently. But is not that verse required for the lesson taught at the School of R. Ishmael for it was indeed taught at the School of R. Ishmael that [the text] 'And to heal he shall heal' [is the source] whence it is derived that authorisation was granted [by God] to the medical man to heal?³  — If so [that it was to be utilised solely for that implication] Scripture would have said, 'Let the physician cause him to be healed' — This shows that payment for Healing should be made even in the case where Depreciation [is paid independently]. But still, is not the text required as said above to provide a double mention in respect of Healing? — If so, Scripture should have said either 'to cause to heal [and] to cause to heal'⁴  or 'he shall cause to heal [and] he shall cause to heal.⁵  Why say 'and to heal he shall heal'⁶  unless to prove that payment should be made for Healing even in the case where Deprecation [is paid independently].

From this discussion it would appear that a case could arise where the Four Items would be paid even where no Depreciation was caused. But how could such a case be found where no Depreciation was caused? — Regarding Pain it was stated: 'PAIN': — IF HE BURNT HIM EITHER WITH A SPIT OR WITH A NAIL, EVEN ON HIS [FINGER] NAIL WHICH IS A PLACE WHERE NO BRUISE COULD BE MADE, Healing could apply in a case where one had been suffering from some wound which was being healed up, but the offender put on the wound a very strong ointment which made the skin look white [like that of a leper] so that other ointments have to be put on to enable him to regain the natural colour of the skin — Loss of Time [without Depreciation could occur] where the offender [wrongfully] locked him up in a room and thus kept him idle. Degradation [could apply] where he spat on his face.

'LOSS OF TIME': — THE INJURED PERSON IS CONSIDERED AS IF HE WERE A WATCHMAN OF CUCUMBER BEDS. Our Rabbis taught: '[In the case of assessing] Loss of Time, the injured person is considered as if he would have been a watchman of cucumbers. You might say that the requirements of justice suffer thereby, since when he was well⁷  he would surely not necessarily have worked for the wages of a watchman of cucumber beds but might have carried buckets of water and been paid accordingly, or have acted as a messenger and been paid accordingly.⁸  But in truth the requirements of justice do not suffer, for he has already been paid for the value of his hand or for the value of his leg.⁹

Raba said: If he cut off [another's] arm he must pay him for the value of the arm, and as to Loss of Time,¹⁰  the injured person is to be considered as if he were a watchman of cucumber beds; so also if he broke [the other's] leg, he must pay him for the value of the leg, and as to Loss of Time the injured person is to be considered as if he were a door-keeper; if he put out [another's] eye he must pay him for the value of his eye, and as to Loss of Time the injured person is to be considered as if he were grinding in the mill; but if he made [the other] deaf, he must pay for the value of the whole of him.¹¹

Raba asked: If he had cut off [another man's] arm and before any appraisement had been made he also broke his leg, and again before any appraisement had been made he put out his eye, and again before any appraisement had been made he made him at last deaf, what would be the law? Shall we say that since no valuation has yet been made one valuation would be enough, so that he would have to pay him altogether for the value of the whole of him, or shall perhaps each occurrence be appraised by itself and paid for accordingly? The practical difference would be whether he would have to pay for Pain and Degradation of each occurrence separately. It is true that he would not have to pay for Depreciation, Healing and Loss of Time regarding each occurrence separately, the reason being that since he has to pay him for the whole of him the injured person is considered as if killed altogether, and there could surely be made no more payment than for the value of the whole of him; but in respect of Pain and Degradation the payment should be made for each occurrence separately, as he surely suffered pain and degradation on each occasion separately. If, however, you find it [more correct] to say that since no appraisement had been yet made he can pay him for the value of the whole of him altogether, what would be the law where separate appraisements were made? Shall we say that since separate valuations were made the payment should be for each occurrence by itself, or since the payment had not yet been made he has perhaps to pay him for the value of the whole of him? This must remain undecided.

Rabbah asked: What would be the law regarding Loss of Time that renders the injured person of less value [for the time being]. How could we give an example? For instance, where he struck him on his arm and the arm was broken but will ultimately recover fully.¹²  What would be the legal position?¹³  [Shall we say that] since it will ultimately recover fully he need not pay him [for the value of the arm], or perhaps [not so], since for the time being he diminished his value? — Come and hear:¹⁴  If one strikes his father and his mother without making on them a bruise,¹⁵  or injures another man on the Day of Atonement,¹⁶

1. Ibid.
2. Ex. XXI, 19. [The emphasis indicates that this payment had to be made in all circumstances.]
3. V. supra p. 488.
4. I.e., a repetition of the infinitive.
5. I.e., a repetition of the verb in the finite mood.
6. I.e., on one occasion the verb is in the infinitive and on the other in the finite mood.
7. Cf. Rashi; but also Tosaf. a.l.
8. Why then not pay him for Loss of Time in accordance with the proper wage?
9. In the way of Depreciation, and could in fact no more work in his previous employment but in a different capacity such as a watchman of cucumbers or a doorkeeper.
10. During the days of illness when he is totally unable to do any work.
11. As by having been made deaf he is unfit to do anything.
12. In which case the depreciation is but temporary.
13. Regarding the payment for Depreciation.
14. Infra p. 87a.
15. In which case the capital offence of Ex. XXI, 25 has not been committed; v. Sanh. 84b.
16. The violation of which entails no capital punishment at the hands of a court of law; cf. Lev. XXIII, 30 and Ker. I, 1. Again, though lashes could be involved in this case in accordance with Mak. III, 2, the civil liability holds good as supra p. 407.