Babylonian Talmud: Tractate Baba Kamma

Folio 86a

he is liable for all of the Five Items. Now, how are we to picture no bruise being made [in such a case]? Does this not mean, e.g., where he struck him on his arm which will ultimately recover¹  and it is nevertheless stated that he 'is liable for all of the Five Items'?²  — It may, however, be said that we are dealing here with a case where e.g., he made him deaf³  without making a bruise on him. But did Rabbah not say⁴  that he who makes his father deaf is subject to be executed,⁵  for it is impossible to cause deafness without first making a bruise through which a drop of blood falls into the ear?⁶  — It must therefore be said that we are dealing here with a case where e.g. he shaved him [against his will] — But will not the hair grow again in the case of shaving? And that is the very question propounded.⁷  — It may, however, be said that we are dealing here with a case where e.g. he smeared nasha⁸  over it so that no hair will ever grow there again. Pain [in such a case should similarly be paid] where he had scratches on his head and thus suffered on account of the sores. Healing [should similarly be paid] as it requires curing. Loss of Time would be where he was a dancer in wine houses and has to make gestures by moving his head and cannot do so [now] on account of these scratches.⁹  Degradation [should certainly be paid], for there could hardly be a case of greater degradation.

But this matter which was doubtful to Rabbah was quite certain to Abaye taking one view, and to Raba taking the opposite view. For it was stated: If he struck him on his arm and the arm was broken but so that it would ultimately recover completely, Abaye said that he must pay for General Loss of Time¹⁰  plus Particular Loss of time, whereas Raba said that he will not have to pay him anything but for the amount of the Loss of Time¹¹  for each day [until he recovers].

It was stated: If a man cuts off the arm of a Hebrew servant of another, Abaye said that he will have to pay the servant for General Loss of Time, and the master for Particular Loss of Time, whereas Raba said that the whole payment should be given to the servant¹²  who would have to [invest it and] purchase real property whose produce would be enjoyed by the master. There is no question that where the servant became [through the injury] depreciated in his personal value while no loss was caused so far as the master was concerned, as for instance, where the offender split the top of the servant's ear or the top of his nostrils,¹³  the whole payment would go to the servant himself. It was only where the depreciation affected the master [also]¹⁴  that Abaye and Raba differ.

'DEGRADATION': — ALL TO BE ESTIMATED IN ACCORDANCE WITH THE STATUS OF THE OFFENDER AND THE OFFENDED. May we say that our Mishnah is in agreement neither with R. Meir nor with R. Judah but with R. Simeon? For it was taught: 'All [sorts of injured persons] should be considered as if they were freemen who have become impoverished since they are all the children of Abraham, Isaac and Jacob;¹⁵  this is the view of R. Meir. R. Judah says that [Degradation in the case of] the eminent man [will be estimated] in accordance with his eminence, [whereas in the case of] the insignificant man [it will be estimated] in accordance with his insignificance. R. Simeon says that wealthy persons will be considered merely as if they were freemen who have become impoverished, whereas the poor will all be put on the level of the least among them.¹⁶  Now, in accordance with whom is our Mishnah? It could not be in accordance with R. Meir, for the Mishnah states that all are to be estimated in accordance with the status of the offender and the offended, whereas according to R. Meir all [sorts of persons] are treated alike. It could similarly not be in accordance with R. Judah, for the Mishnah [subsequently] states¹⁷  that he who insults even a blind person is liable, whereas R. Judah¹⁸  says that a blind person is not subject to the law of Degradation. Must the Mishnah therefore not be in accordance with R. Simeon?¹⁹  — You may say that they are [even] in accordance with R. Judah. For the statement made by R. Judah that a blind person is not subject to the law of Degradation means that no payment will be exacted from him [where he insulted others], whereas when it comes to paying him [for Degradation where he was insulted by others], We would surely order that he be paid. But since it was stated in the concluding clause 'If he insulted a person who was sleeping he would be liable [to pay for Degradation], whereas if a person who was asleep insulted others he would be exempt', and no statement was made to the effect that a blind person insulting others should be exempt, it surely implied that in the case of a blind person²⁰  there was no difference whether he was insulted by others or whether he insulted others, [as in all cases the law of Degradation would apply]!²¹  — It must therefore be considered as proved that the Mishnaic statements were in accordance with R. Simeon.

Who was the Tanna for what our Rabbis taught: If he intended to insult a katon²²  but insulted [by accident] a gadol²³  he would have to pay the gadol the amount due for the degradation of the katon, and so also where he intended to insult a slave but [by accident] insulted a freeman he would have to pay the freeman the amount due for the degradation of the slave? According to whom [is this teaching]? It is in agreement neither with R. Meir nor with R. Judah nor even with R. Simeon, it being assumed that katon meant 'small in possessions' and gadol [similarly meant] 'great in possessions'. It could thus hardly be in accordance with R. Meir, for he said that all classes of people are treated alike. It could similarly not be in accordance with R. Judah, for he stated that in the case of slaves no Degradation need be paid. Again, it could not be in accordance with R. Simeon, since he holds that where the offender intended to insult one person and by an accident insulted another person he would be exempt, the reason being that this might be likened to murder, and just as in the case of murder there is no liability unless where the intention was for the particular person killed,²⁴  as it is written: 'And lie in wait for him and rise up against him'²⁵  [implying, according to R. Simeon, that there would be no liability] unless where he aimed at him particularly, so should it also be in the case of Degradation, that no liability should be imposed on the offender unless where he aimed at the person insulted, as it is written: 'And she putteth forth her hand and taketh him by the secrets'²⁶  [which might similarly imply that there should be no liability] unless where the offence was directed at the person insulted. [Who then was the Tanna of the teaching referred to above]? — It might still be said that he was R. Judah, for the statement made by R. Judah that in the case of slaves there would be no liability for Degradation means only that no payment will be made to them, though in the matter of appraisement we can still base the assessment on them. Or if you like I may say that you may even regard the teaching as being in accordance with R. Meir, for why should you think that gadol means 'great in possessions' and katon means 'small in possessions', and not rather that gadol means an actual gadol [i.e. one who is of age] and katon means an actual katon [i.e. a minor]? But is a minor subject to suffer Degradation? — Yes, as elsewhere stated by R. Papa, that if where he is reminded of some insult he feels abashed²⁷  [he is subject to Degradation] so also here

1. For since no bruise was made it will surely recover.
2. In which Depreciation is included.
3. In which case he will never recover,
4. Infra 98a.
5. For having committed a capital offence in accordance with Ex. XXI, 25.
6. And since a capital offence would thus have been committed no civil liabilities could be entailed; cf. infra p. 502.
7. Which problem could thus be solved.
8. I.e., the sap of a plant used as a depilatory; cf. also Mak. 20b.
9. [MSS. omit 'on account of these scratches', apparently as it is the nasha which was smeared over his head which prevents his appearing in his dancing role.]
10. Another term for Depreciation.
11. But not for the temporary depreciation in value.
12. [Tosaf. reads: 'to the master' as it is the master who is the primary loser in consequence of the servant's enforced idleness.]
13. Through which injury the servant is not hindered from performing his usual work.
14. Cf. Rashi and Tosaf. a. l.
15. V. infra 90b.
16. I.e., among the poor.
17. Infra p. 496.
18. Infra pp. 495-499.
19. [Who also does not treat all persons alike.]
20. Whom the Mishnaic statement makes subject to the law of Degradation.
21. This would contradict R. Judah, who maintained that a blind person would not have to pay Degradation.
22. Denotes either 'small', or a minor,
23. Denotes either 'great' or 'one who is of age'.
24. As indeed maintained by R. Simeon; cf. Sanh. 79a and supra p. 252.
25. Deut. XIX, 11.
26. Ibid. XXV, 11.
27. Infra 86b.

he was a minor who, if the insult were mentioned to him, would feel abashed.

MISHNAH. ONE WHO INSULTS A NAKED PERSON, OR ONE WHO INSULTS A BLIND PERSON, OR ONE WHO INSULTS A PERSON ASLEEP IS LIABLE [FOR DEGRADATION], THOUGH IF A PERSON ASLEEP INSULTED [OTHERS] HE WOULD BE EXEMPT. IF ONE IN FALLING FROM A ROOF DID DAMAGE AND ALSO CAUSED [SOMEBODY] TO BE DEGRADED, HE WOULD BE LIABLE FOR DEPRECIATION BUT EXEMPT FROM [PAYING FOR] DEGRADATION UNLESS HE INTENDED [TO INFLICT IT].¹

GEMARA. Our Rabbis taught: If he insulted a person who was naked he would be liable²  though there could be no comparison between one who insulted a person who was naked³  and one who insulted a person who was dressed. If he insulted him in the public bath he would be liable though one who insulted a person in a public bath³  could not be compared to one who insulted a person in the market place.

The Master stated: 'If he insulted a person who was naked he would be liable.' But is a person who walks about naked capable of being insulted?⁴  — Said R. Papa: The meaning of 'naked' is that a wind [suddenly] came and lifted up his clothes, and then some one came along and raised them still higher, thus putting him to shame.

'If he insulted him in the public bath he would be liable.' But is a public bath a place where people are apt to feel offended?⁵  — Said R. Papa: It meant that he insulted him⁶  near the river.⁷

R. Abba b. Memel asked: What would be the law where he humiliated a person who was asleep but who died [before waking]?⁸  — What is the principle involved in this query?⁹  — Said R. Zebid: The principle involved is this: [Is Degradation paid] because of the insult, and as in this case he died before waking and was never insulted [no payment should thus be made], or is it perhaps on account of the [public] disgrace, and as there was here disgrace [payment should be made to the heirs]? — Come and hear: R. Meir says: A deaf-mute and a minor are subject to [be paid for] Degradation, but an idiot is not subject to be paid for Degradation. Now no difficulty arises if you say that degradation is paid on account of the disgrace; it is then quite intelligible that a minor [should be paid for Degradation]. But if you say that Degradation is paid on account of the insult, [we have to ask,] is a minor subject to feel insulted? — What then? [You say that] Degradation is paid because of the disgrace? Why then should the same not apply even in the case of an idiot? — It may, however, be said that the idiot by himself constitutes a disgrace which is second to none. But in any case, why not conclude from this statement that Degradation is paid on account of the disgrace, for if on account of the insult, is a minor subject to feel insulted? — As elsewhere stated by R. Papa, that if where the insult is recalled to him he feels abashed [he is subject to Degradation]; so also here he was a minor who when the insult was recalled to him would feel abashed.

R. Papa, however, said that the principle involved in the query [of R. Abba] was this: [Is Degradation paid] because of personal insult, and as in this case [where] he died [before waking he did not suffer any personal insult, no payment should be made], or is [Degradation paid] perhaps on account of the insult suffered by the family? — Come and hear: A deaf-mute and a minor are subject to [be paid for] Degradation but an idiot is not subject to [be paid for] Degradation. Now no difficulty arises if you say that Degradation is paid on account of the insult suffered by the family; it is then quite intelligible that a minor [should be paid for Degradation]. But if you say that Degradation is paid on account of personal insult [we have to ask], is a minor subject to personal insult? — What then? [Do you say] that Degradation is paid because of the insult sustained by the members of the family? Why then should the same not apply in the case of an idiot? — It may, however, be said that the idiot by himself constitutes a Degradation [to them] which is second to none. But in any case, why not conclude from this statement that Degradation is paid on account of the insult suffered by the family, for if on account of personal insult,¹⁰  is a minor subject to personal insult? — Said R. Papa: Yes, if when the insult is mentioned to him he feels insulted, as indeed taught: 'Rabbi says: A deaf-mute is subject to [be paid for] Degradation, but an idiot is not subject to [be paid for] Degradation, whereas a minor is sometimes subject to be paid and sometimes not subject to be paid [for Degradation].' The former [must be] in a case where, if the insult is mentioned to him, he would feel abashed, and the latter in a case where if the insult is recalled to him he would not feel abashed.

ONE WHO INSULTS A BLIND PERSON … IS LIABLE [FOR DEGRADATION]. This Mishnah is not in accordance with R. Judah. For it was taught: R. Judah says: 'A blind person is not subject to [the law of] Degradation. So also did R. Judah exempt him from the liability of being exiled¹¹  and from the liability of lashes¹²  and from the liability of being put to death by a court of law.'¹³  What is the reason of R. Judah? — He derives [the law in the case of Degradation by comparing the term] 'thine eyes' [inserted in the case of Degradation¹⁴  from the term] 'thine eyes'¹⁵  occurring in the case of witnesses who were proved zomemim:¹⁶  just as there¹⁷  blind persons are not included¹⁸  so also here¹⁹  blind persons should not be included. The exemption from the liability to be exiled is derived as taught: Seeing him not²⁰  excepts a blind person;²¹  so R. Judah. R. Meir on the other hand says that it includes a blind person.²²  What is the reason of R. Judah? — He might say to you [as Scripture says]: 'As when a man goeth into the wood with his neighbour to hew wood',²³  which might include even a blind person. The Divine Law therefore says 'Seeing him not' to exclude [him]. But R. Meir might contend that as the Divine Law inserted 'Seeing him not' [which implies] an exception, and the Divine Law further inserted unawares'²⁴  [which similarly implies] an exception, we have thus a limitation followed by another limitation, and the established rule is that a limitation followed by another limitation is intended to amplify.²⁵  And R. Judah? — He could argue that the word 'unawares' came to be inserted to except a case of intention. [Exemption from] liability to be put to death by a court of law is derived [from comparing the term] 'murderer' [used in the section dealing with capital punishment²⁶  with the term] 'murderer' [used in the section setting out] the liability to be exiled.²⁷  [Exemption from] liability of lashes is learnt [by comparing the term] 'wicked' [occurring in the Section dealing with lashes²⁸  with the term] 'wicked'²⁶  occurring in the case of those who are liable to be put to death by a court of law.

Another [Baraitha] taught: R. Judah says: A blind person is not subject to [the law of] Degradation.

1. Supra p. 140.
2. Even where the insult was caused by further uncovering him; cf. Tosaf. a.l,
3. In which case the payment will be much less.
4. By means of being further uncovered; again, how could a naked person be further uncovered?
5. By means of being uncovered, since everybody is uncovered there.
6. By uncovering him.
7. Where people merely bathe their legs and are therefore fully dressed.
8. So that he personally never felt the humiliation.
9. Why indeed should there by any payment in such a case.
10. no note.
11. For inadvertently killing a person.
12. When transgressing a negative commandment.
13. For committing a capital offence.
14. Deut. XXV, 12.
15. Ib., XIX, 21.
16. I.e., against whom the accusation of an alibi was proved; v. Glos.
17. In the case of witnesses.
18. For since a blind person could not see he is disqualified from giving evidence, on the strength of Lev. v, 1; cf. Tosaf, B.B. 129a, s.v. [H], and Asheri B.B. VIII, 24; but v. also Shebu. 33b.
19. In the case of Degradation.
20. Num. XXXV, 23.
21. From being subject to the law of exile.
22. Mak. 9b.
23. Deut. XIX, 5.
24. Ibid. 4.
25. Cf. supra p. 259.
26. Num. XXXV, 31.
27. Deut. XIX, 3.
28. Deut. XXV, 2.