Eye for an Eye (Analysis of text) – Appendices

Appendix 1 – Liability

The degree of liability depends upon assailant’s culpability as shown in the following table based upon Talmud (ibid. 26a-b) and Shulchan Aruch 421:3. This table includes the name of the compensation in Hebrew and English with respect to culpability ranging from intentional (5 forms of compensation), negligence (4 forms), without negligence but avoidable (1 form), and unavoidable mishap (exempt).

Although the Torah does not clearly define these different levels of liability state the Talmud (ibid. b) derives these levels from scripture as follows.

In addition the Shulchan Aruch (ibid. 421:5) rules that if two people willingly engage in a fight (e.g. for sport),  then neither party can sue for damages because they entered this fight willingly and forfeit any claims.

Permanent Damage – נזק

The Talmud (ibid. 26b) notes an apparent redundancy in the Torah. The Torah (Exodus 21:25) states “A wound for a wound” and also writes (Leviticus 24:19) “A man who inflicts an injury upon his fellow man; just as he did so shall be done to him.” Since a wound is also an injury the former verse teaches that one is liable for injury even when the assailant acted without negligence or the injury was avoidable.

Pain (צער), Medical Care (רפוי), and Temporary Loss of Employment (שבת)

The Torah (Exodus 21:18-19) writes, “If men quarrel and one strikes another with a stone or with a fist … the assailant shall pay for temporary loss of employment and medical expenses.” This implies that these liabilities apply when the assailant acted with intention. Similarly the verse indicating liability for pain (ibid. 25) follows a verse (ibid. 22) which speaks of men quarreling.  The Talmud (ibid. 27a) explains that for these liabilities negligence is equivalent to intentional injury.

Embarrassment – בשת

Liability for embarrassment only applies when the injury was intentional based upon Deuteronomy 25:11-12,”If two men are fighting and the wife of one of them approaches to rescue her husband from his assailant and stretches out her hand and grabs hold of his private parts. You (court) shall cut off her hand.” The Talmud (ibid. 86a) interprets the stretching of the hand as intent to embarrass.

Scenarios

The Talmud (Bava Kamma 27a) provides scenarios for all of the above cases involving a person who falls off a roof and causes injury to another. (In Talmudic times houses had flat rooms which were used for living space and storage.) The author has listed the cases in increasing level of liability depending upon the strength of the wind that led to his fall.

1. Unavoidable (0 payments) – If a person fell as a result of a totally unexpected wind he is not liable because this accident was unavoidable. In the words of Halacha this is termed גמור אונס. In secular law the term may be “exemption by an irresistible force”.
2. Avoidable (1 type of payment) – If a person fell as a result of an unusual, but not totally unexpected wind, then he is only liable for permanent damage because a person is responsible for permanent injury unless unavoidable.
3. Negligent (4 types of payments) – If a person fell as a result of a normal wind then he is liable for 4 forms of compensation because he was negligent but did not intend to injure.
4. Intentional (5 types of payments) – If a man fell as a result of a normal wind and intentionally landed on a women to soften the fall then he is liable for all 5 types of payment.  Although he did not intend to embarrass he is liable because he intended to soften the fall.

Appendix 2 – Combinations

An assailant may be liable for any of these 5 payments depending upon the injury sustained. As an example the Shulchan Aruch (Chosen Mishpat 420) lists different injuries where the assailant must pay from 1 to 5 payments as follows:

1. 1 payment – The assailant hit a person in the face with a hand or shaved his head (ibid. 8 and 12 respectively – embarrassment only), burned him with no other injuries (ibid. 9 – pain), applied a lotion which only changed the appearance of the victim’s skin in a place where it not visible (ibid. 10 – medical care), or forced the victim into a room and the locked the room (ibid. 11 – temporary loss of employment).
2. 2 payments – The assailant hit the victim in a place which is not exposed which requires medical attention (ibid. 7 – medical expense and pain).
3. 3 payments – The assailant hit a person in the head which caused swelling but no affect on employment (ibid. 6 – pain, medical attention, and embarrassment).
4. 4 payments – The assailant hit a person on his hand which caused swelling resulting in temporary loss of employment and the other 3 payments listed in the previous case (ibid. 5 – pain, medical attention, temporary loss of employment and embarrassment.)
5. 5 payments – The assailant cut off or permanently injured a person’s hand resulting in permanent reduction in wages and in addition to the 4 payments listed in the previous case (ibid. 4 – permanent damage, pain, medical attention, temporary loss of employment and embarrassment.)

Although there are other possibilities for different amounts of payments the author has selected examples from the Shulchan Aruch for ease of reference. In addition these examples illustrate the great detail of Halacha in establishing law.

The Aruch Hashulchan (ibid. 420:10) similarly provides examples of 1 to 5 payments where the assailant burned the victim. For example the assailant would pay for pain and embarrassment when the injury is visible.

Appendix 3 – Judicial Authority

The Talmud (ibid. 84a-b) states that compensation for injury to a person caused by another person cannot be collected outside of Israel at that time. The Talmud (ibid.) explains that the Torah uses the word להים-א for judges in Exodus 22:8, “For every item of liability … both parties shall come to the judges (for litigation).” The term להים-א refers to expert judges who were ordained in Israel as an unbroken chain of ordination from the time of Moses. Although the above verse refers to a theft, the Talmud (ibid. b) extends the requirement of expert judges to the laws of damages because they are included in the same section of the Torah.

Towards the end of the Talmudic era this chain was broken and therefore it appears that there is no recourse through a rabbinic court. However the Talmud (ibid.) explains that current rabbinic courts acts as agents of the earlier ordained and may adjudicate cases which meet the following requirements:

• Monetary claim (not a fine from the Torah).
• Commonplace occurrence.
• Direct monetary loss.

Monetary Claim

A monetary settlement is not a fixed amount and depends upon the case (e.g. bodily injury). By contrast the Torah imposes fixed fines for certain damages independent of the actual loss (e.g. an ox kills a Canaanite slave – Exodus 21:32). Hence all 5 forms of compensation for injury are monetary claims.

Commonplace Occurrence

The case must be a commonplace occurrence. The Talmud (ibid.) states that bodily injury caused by a person is not as common as other damages. However the commentators on the Talmud dispute the extent of this statement. Maimonides (Laws of Sanhedrin 5:10) rules that injury involving compensation for medical expenses and temporary loss of work is common and therefore may be handled by the courts at present. By contrast the Rosh (Bava Kamma 8:2) rules that all forms of bodily injury are uncommon and therefore compensation for medical expenses and temporary loss of work are not handled by the courts at present.

Direct Monetary Loss

Although embarrassment is a common occurrence the courts do not handle this case because it does not involve direct monetary loss. The same applies for compensation for pain.

Summary

The following table summarizes the type of injury whether common occurrence or direct monetary loss.  This table includes the name of the compensation in Hebrew and English and whether the injury is commonplace and involves direct monetary loss.

The Shulchan Aruch (Chosen Mishpat 1:2) rules that rabbinic courts at present do not adjudicate case of bodily injury involving permanent damage, pain, or embarrassment. The author of the Shulchan Aruch follows the opinion of Maimonides and rules that settlement involving medical expenses and temporary loss of employment are handled by rabbinic courts. By contrast the Rema follows the opinion of the Rosh and rules that even these cases are not handled by rabbinic courts.

Recourse

Despite these limitations the victim has recourse through:

• Seizure of property – The victim may seize property of the assailant as compensation for damages. However since courts cannot adjudicate these cases the victim cannot ask the court for an amount to seize. Rather he seizes property according to his assessment. In turn the assailant may approach the court for a settlement if he feels that the victim has seized too much.
• Excommunication – The court has the right to excommunicate the assailant if he does not agree to settle with the victim (ibid. 1:5).
• Emergency legislation – The court has the right to judge the assailant for all 5 forms of compensation if they deem that the he is a menace to society and will persist in injuring others. In extreme cases the court has the authority to imprison (ibid. 2:1).
• Moral suasion – Although the assailant cannot be sued in court he is nevertheless not exempt from payment. Rather he is morally obligated to compensate the victim for damages in the language of Halacha, “To fulfill the law of heaven.” Hence the court may pressure the assailant to appease the victim for an out of court settlement (ibid. 1:2).