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Bava Kama, 85

BAVA KAMA 85 (3 Cheshvan) - dedicated l'Iluy Nishmas Malka bas Menashe (and Golda) Krause, by her daughter, Gitle Bekelnitzky. Under both material and spiritual duress, she and her husband raised their children in the spirit of our fathers, imbuing them with a love for Torah and Yiddishkeit. Her home was always open to the needy, even when her family did not have enough to feed themselves.


QUESTION: The Gemara learns from the extra phrase of "Rapo *Yerapei*" (Shemos 21:19) that it is permitted for a doctor to heal.

Why would we have thought -- had the Torah not included the extra word "Yerapei" -- that it is *not* permitted for a doctor to heal a person? The verse is referring to a situation in which one person causes bodily damage to another person, and the victim needs to pay a doctor to heal him. It is obvious from the verse, even without the extra word, that a person who is harmed does not have to passively accept the fate of being wounded by the other person, but that he may go to a doctor to be healed!


(a) RASHI and TOSFOS seem to explain that the Gemara is learning from the extra word that even in a situation in which a person becomes sick or bruised without human intervention, but rather as a Divine decree, it is still permitted for the doctor to heal him. We might have thought that it is a matter of faith in Hashem, and that a person should trust that just as Hashem brought the illness upon him, Hashem will take it away. The verse teaches that it is not considered a lack of faith when one turns to a doctor for healing (as long as he recognizes that it is ultimately Hashem who allows the doctor to heal him, -TESHUVOS HA'RASHBA 1:413).

The RAMBAN (Vayikra 26:11) indeed writes that a person with a high level of Emunah will not turn to a doctor but will ask Hashem to heal him directly. (See Insights to Berachos 60a.)

The Rashba adds that we learn from this verse that it is even permitted to heal using methods that are poorly understood and seem superstitious, but which are proven to be effective. As Abaye and Rava teach in Shabbos (67a; see Insights there), anything which is done in order to heal is not a transgression of "Darchei Emori." Accordingly, the verse is teaching that healing in such a manner does not border on Avodah Zarah.

(See Insights to Berachos 10b, where we explain that this might be the reason why the Chachamim praised Chizkiyah for hiding away the Sefer Refu'os.)

(b) The MOSHAV ZEKEINIM (Shemos 21:19) explains that this Derashah is similar to the Derashah of "Shale'ach Teshalach" (see Bava Metzia 31a) which teaches that one must send away the mother bird "even 100 times." Here, too, the verse teaches that a doctor may attempt to heal many times if previous efforts failed. We might have thought that if the previous efforts failed that it is a Divine sign that Hashem wants the person to remain maimed. The verse teaches that the failed efforts should not be construed as such, and the doctor may attempt to heal again if at first he does not succeed.

(c) RABEINU CHANANEL (cited by the Moshav Zekeinim) explains that one might think that it is prohibited for a doctor to heal using strong medications, because the medications might adversely or mortally affect the person being treated. The verse teaches that the doctor may practice medicine to the best of his ability, as long as he is genuinely attempting to help the person. This is also the way the RAMBAN (in Toras ha'Adam, p. 41) explains.

(d) TOSFOS HA'ROSH in Berachos (60a) cites RABEINU YAKOV of Orleans who explains that the verse is permitting a doctor to receive wages for his services. Normally one is not permitted to take money for doing a Mitzvah, such as for returning a lost object (see Nedarim 38b). It is permitted, however, for a doctor to take wages for his services.

(e) The TUR (beginning of YD 336) explains that the Gemara is not teaching that it is *permitted* for a doctor to heal, but that it is a *Mitzvah* for him to heal. He should not refrain from healing out of fear that he might accidentally harm the person he is trying to help (and face malpractice claims). Rather, he should view it as a Mitzvah and he should offer his services wherever possible.

The Ramban (in Toras ha'Adam) takes this further and says that it is an obligation for the doctor to heal because of "Piku'ach Nefesh," saving a person's life. (The obligation is the *doctor's* when the patient wants his services. However, the *patient* can act with Midas Chasidus and choose not to turn to doctors for help.)


QUESTION: The Mishnah states that the Mazik must pay the Nizak "Sheves" by compensating him for the time that he was unable to work as a result of the wound. The amount of the compensation of "Sheves" is based on the wages that the injured person could have earned as "Shomer Kishu'im" (a gourd-guard).

The Gemara asks why should he only receive the wages of a Shomer Kishu'im if -- when he is healed -- he is able to earn higher wages? He can earn higher wages by drawing water (if his leg broke, Rashi) or by delivering mail (if his arm broke, Rashi). The Gemara answers that since the payment for the loss of the person's limb was already included in the payment of Nezek, therefore it is appropriate for the Nizak to receive as Sheves only the wages of a Shomer Kishu'im.

Why is it appropriate for him to receive only the low wages of a Shomer Kishu'im, just because he received the payment of Nezek? The Nezek takes into account that after he broke his arm, he can no longer work at his regular vocation, such as cutting diamonds. However, he can still earn more than a Shomer Kishu'im by delivering mail (if his arm broke, or by drawing water if his leg broke). Therefore, since the illness is preventing him from earning the wages of a water-drawer, the Mazik should pay him the wages of a water-drawer for the days that the Nizak is sick!


(a) TOSFOS (DH d'Chi Mitpach) explains that when the Gemara says that when the person is healthy he can be a water-drawer (or a messenger to deliver mail), it means that *before* he was injured he was fit to do such work, and therefore the Mazik should be required to pay the Nizak for the loss of wages that the Nizak incurred by not being able to work at his original vocation.

The Gemara answers that the payment of Nezek already takes into account that the Nizak can no longer work at his original vocation, and that all he is fit now to do is to be a Shomer Kishu'im. Therefore, the additional payment of Sheves covers only the loss of the Nizak that he incurs by not being able to guard gourds during the time that he was recovering from the wound. This is also the way that the RAV ABA'D (the father-in-law of the RA'AVAD) explains the Gemara, as cited by the BA'AL HA'ME'OR. This seems to be the intention of RABEINU CHANANEL as well.

The RASHBA asks that according to this explanation, why does the Gemara give water-drawing and mail-delivering as two examples of vocations of a person who was not injured? A person who has full use of all his limbs can even be a diamond-cutter or work at any other high-income profession!

The Rashba answers that the Gemara gives examples of common vocations. According to Tosfos, when a person loses his hand, he is not fit even to deliver mail, since mail-carriers use their hands as well.

(b) The Rashba cites the RA'AVAD who explains that even after the person recuperates, he is fit to draw water or to deliver messages, as the simple reading of the Gemara implies. Nevertheless, he is paid Sheves as a Shomer Kishu'im, since, normally, a person who is maimed takes a lowly job such as that of a Shomer Kishu'im. The intention of the Ra'avad seems to be that if the Nizak -- after he recuperates -- chooses to deliver messages, we do not say that this reveals retroactively that he could have delivered messages from the moment that he was maimed had he not been bedridden due to his wounds (and therefore the Mazik must pay to him, as Sheves, the wages of a mail-deliverer). Rather, we say that the moment he was maimed he probably would have become a Shomer Kishu'im, and from the moment he received the job of delivering messages, we view it as an increase in salary. Therefore, the Sheves is assessed only as the wages of a Shomer Kishu'im, since we assume that this is what the Nizak would have been doing had he been well and not ill.

This might also be the intention of RASHI (DH Azil, and DH Midas ha'Din, as the printed version of Rashi reads, without the emendations of the Maharshal and the Bach), as the MAHARSHA implies.

(c) The BA'AL HA'ME'OR explains that the Mazik does not have to pay Sheves for any vocation other than for the wages that the Nizak was earning *until* the time of the injury. Even if the Nizak could be a water-drawer after the injury, this was not a vocation that he chose for himself before the injury, and therefore the Mazik does not have to pay for the losses incurred by the Nizak by not being able to draw water while he is ill. The Mazik must pay only for the losses incurred by the Nizak's inability to cut diamonds (if he was a diamond cutter), and this was included in the payment of Nezek (which takes into account the fact that the Nizak can no longer cut diamonds). Why, then, does the Mazik pay Sheves even for the wages of a Shomer Kishu'im if the Nizak did not have that vocation before he was injured?

The Ba'al ha'Me'or answers that in theory it was possible for the Nizak to have been a Shomer Kishu'im *at the same time* as he was a diamond cutter. Therefore, we view that as a possible income source of the Nizak until he was injured. In order to make up for that lost source of income, the Mazik pays Sheves, since the wages he could have earned by watching gourds is not included in the payment of Nezek.

The logic of the Ba'al ha'Me'or seems to be as follows. The loss of income suffered by the Nizak because he could have drawn water had he not been bedridden is considered an indirect effect of the damage, since the Nizak was not a water-drawer at the time at which the Mazik caused him to become sick. The only thing that the Mazik directly stopped the Nizak from doing is earning money as a diamond cutter (or whatever he was doing as a vocation before he was injured). If the Torah teaches a Chidush that we collect an extra payment of Sheves for the Nizak, then we should limit the Chidush by at least looking for some occupation which the Mazik directly stopped the Nizak from doing. We therefore look for the type of occupation that the Nizak could have done (at least potentially), together with his normal work, before he was injured. This is what the Mazik directly caused the Nizak to lose, aside from the payment of Nezek that he must give. (Of course, if the Nizak -- after he recovers from his injury -- cannot even be a Shomer Kishu'im (for example, he was blinded), then the Mazik does not have to pay him the Sheves of a Shomer Kishu'im, but rather the Sheves for work that a blind person could do, which a healthy person can do at the same time as his normal work, as Rava says later on the Daf.)

(d) TOSFOS RABEINU PERETZ writes that the main payment of the Mazik is *Nezek*, and the others are only "extra penalties." Therefore, it is enough to make the Mazik pay Sheves as if the Nizak was a Shomer Kishu'im; he does not have to pay according to what the Nizak is actually able to do after he recovers.

The logic of Tosfos Rabeinu Peretz is similar to that of the Ba'al ha'Me'or. The only "true" payment that the Nizak deserves is Nezek (and Boshes), just as we find that when a person is damaged by someone's animal, he receives only Nezek. With regard to all of the other payments, the Mazik is, to a certain extent, only an indirect cause of loss to the Nizak. Nevertheless, the Torah requires that when a person causes bodily damage to another person, he must pay all of the five payments as an added penalty. Therefore, we can be lenient with the payment of Sheves, and we require only that the Mazik pay the Nizak as a Shomer Kishu'im.

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