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Bava Kama, 86

BAVA KAMA 86 - Dr. and Mrs. Andy and Dianne Koenigsberg, of New York, have dedicated this Daf l'Iluy Nishmas Dianne's father, Reb Aharon Dovid ben Elimelech Shmuel Kornfeld (Czechoslovakia/Israel/New York), who passed away on 3 Av 5761. May his love for Mitzvos and for Eretz Yisrael be preserved in all of his descendants.


QUESTION: The Gemara attempts to prove from the Mishnah later (87a) that one must pay Nezek for causing a temporary wound which will heal completely. The Mishnah states that someone who hit his parents but did not make an open wound is exempt from a Chiyuv Misah, and he must pay all of five of the damage payments. How is it possible to be obligated to pay for damages without making an open wound? It must be that the son hit his parent and caused a bruise that did not bleed externally, and that will eventually heal completely. The Mishnah teaches that one pays the five damage payments for such damage.

Why is it not possible to explain the Mishnah without asserting that the father suffered a wound that will heal completely? Perhaps the son hit the father on the hand in a way that caused it to become partially paralyzed ("Tzamsah Yado") in a manner that will not heal. Since the father lost no blood, the son is not Chayav Misah, but since he caused permanent damage to his father he is obligated to pay the damage payments! (RASHBA)

ANSWER: The RASHBA answers based on the statement of the Gemara with regard to a son who causes his father to become deaf. The Gemara states that it is impossible for the father to become permanently deaf without there being internal bleeding in his ear, and thus the son is Chayav Misah for that act. The Rashba explains that the same applies with regard to any permanent damage that the father suffers; if his hand does not recover, then there must have been some internal bleeding that caused the permanent damage, and thus the son is Chayav Misah.

This also appears to be the intention of RASHI (DH Lav).

QUESTION: Abaye and Rava argue with regard to paying Nezek in a case where one person causes temporary damage to the body of another person. Abaye rules that one pays Nezek and Sheves, as in any case of damage done to someone else. Rava rules that no Nezek is paid in such a case. Since no Nezek is paid, the payment of Sheves cannot be based on the wages of a Shomer Kishu'im (gourd-guard), since the Mazik is not paying the Nizak for the loss of the use of his hand in the first place. Therefore, the Sheves is paid daily, based on the wages that the Nizak could have earned on that day through his regular vocation had he not been ill.

Why, according to Abaye, is the Sheves calculated according to the wages of a Shomer Kishu'im? RASHI (DH d'Va'i Achuyei) explains that if the Nizak -- after his recovery -- will be fit to perform the same work that he did before he was injured, then the payment of Sheves is not determined by the wages of a Shomer Kishu'im, but by the wages that the Nizak will receive when he recovers. Hence, the person who suffered temporary bodily damage will certainly be able to do the same Melachah upon recovery as he did before he was injured. Why, then, is the Sheves not determined based on the wages that he would normally earn, according to Abaye, just like Rava maintains? (See MAHARSHA in Mahadura Basra.)

ANSWER: In the case which Rashi (DH d'Va'i Achuyei) is discussing (in which a person damages someone by causing him to become permanently bald), the Nezek payment that the Mazik pays does not take into account the temporary loss of work that results from the fact that the Nizak's sores on his bald head prevent him from working as a jester until they heal. Rather, the payment of Nezek is meant to compensate for the depreciation of the Nizak's value due to his unsightliness (see Rashi DH Nasha). Therefore, the Sheves payment must take into account the entire loss due to his lack of work during the time that his sores have not healed. However, in the case in which a person temporary disables another person's hand, there is no depreciation due to unsightliness. The Nezek which Abaye obligates the Mazik to pay takes into account the depreciation of the Nizak due to the fact that he cannot work with his hand for a few weeks. Since the payment of Nezek already accounts for the loss that the Nizak suffers by not being able to use his hand in the normal manner, the payment of Sheves must cover only the loss that the Nizak incurs had he been a Shomer Kishu'im during that time.

We might ask that if this is true -- that the payment of Nezek according to Abaye takes into account the depreciation due to the Nizak's temporary inability to work -- then why does Rava disagree with Abaye? Since there is a clear depreciation in value due to the temporary disability, it should be paid as Nezek, just like any other depreciation in the value of the Nizak!

TOSFOS RABEINU PERETZ asks this question. He answers that the depreciation that results from the fact that people will pay less for him (as an Eved) since he is temporarily disabled is greater than the actual loss suffered by the Nizak by not being able to work during the days of his disability. The reason for this is because not every purchaser in the market can evaluate clearly whether the disability is indeed temporary, and if it *is* temporary, how long it will last. Therefore, the purchaser will not offer to purchase the slave for his true value, but rather for less than his true value. Consequently, Rava says that it is not fair for the Mazik to have to pay Nezek based on the Nizak's depreciation in the market, and it suffices to pay the daily Sheves for the duration of time that the Nizak actually cannot work. This is also the intention of TOSFOS (85b, DH Sheves).


QUESTION: Rebbi Yehudah rules that a blind person who embarrassed another person is exempt from paying the payment of Boshes. He derives this from a Gezeirah Shavah which compares the payment of Boshes to the punishment of Edim Zomemim. RASHI explains that a blind person can never be punished as an Ed Zomem, since he cannot bear testimony on what he did not see.

REBBI AKIVA EIGER (in Gilyon ha'Shas) asks why can a blind person not be punished as an Ed Zomem for testifying now about what he saw *before* he became blind! In such a case, a blind person's testimony should be accepted, and thus he should be able to become an Ed Zomem! If the Torah compares the payment of Boshes to the punishment of Edim Zomemim, then a blind person should also be Chayav to pay the payment of Boshes!

ANSWER: Perhaps Rashi learned that according to Rebbi Yehudah, if a person embarrasses his friend and *afterwards* becomes blind, he indeed must pay for Boshes. Hence, the comparison to Ed Zomem is justified; just as a person cannot testify about something that happened while he was blind (and become an Ed Zomem for such testimony), so, too, a person cannot become obligated to pay Boshes for embarrassing someone while he was blind. Just like a person *can* become an Ed Zomem for testifying about an act that he witnessed before becoming blind, so, too, a person can become obligated to pay Boshes for an act that he committed before he became blind!

Rebbi Akiva Eiger did not suggest this answer because he might not have found this unsatisfactory because of the Gemara later (beginning of 87a). The Gemara there teaches that according to Rebbi Yehudah, not only does a blind person not pay for Boshes, but a blind person does not pay any payments that are mentioned in the Torah, and nor is he obligated to observe any of the Mitzvos of the Torah. The logic of this ruling seems to be that Rebbi Yehudah compares a blind person to a Cheresh or Shoteh, to some extent. Hence, if a person is blind at the time that he appears before the court, the court should not be able to obligate him to pay even for actions that he performed before he became blind, just like Beis Din cannot obligate a Cheresh or Shoteh for acts that he performed before he became a Cheresh or Shoteh.

We could suggest that Rashi, on the other hand, holds like TOSFOS. Tosfos (87a, DH v'Chen) asks why Rebbi Yehudah must derive from a Gezeirah Shavah that a blind person does not pay Boshes, if he has another source which teaches that a blind person pays *no* payments! Tosfos answers that Rebbi Yehudah originally exempted a blind person only from Boshes. Later, he found a verse that exempts a blind person from all payments, and he no longer derived the exemption of Boshes from the Gezeirah Shavah, but from the second verse that exempts a blind person from all payments.

According to this answer of Tosfos, we may suggest that the two verses are not identical. The first verse teaches that a blind person is exempt only from Boshes payments that are incurred as a result of an act that the blind person did after he became blind. This is logical, since the reason the Torah differentiates between a blind person and other people only with regard to Boshes is probably because a person suffers less embarrassment from an act done by a person who cannot see him and is not fully aware of the damage that he is causing. Therefore, the factor that determines whether or not a blind person pays Boshes is whether he was blind at the time that he caused the damage. When Rebbi Yehudah changes his mind and compares a blind person to a Cheresh or Shoteh, he exempts a blind person from *all* payments, regardless of when they were incurred. (M. Kornfeld)

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