Eye for an Eye (Analysis of Text – Part 2)

Although the Torah does not specify the details of the payment the Talmud provides the underlying rationale for assessing payment as follows for each category of injury.

Permanent Damage 

The Talmud (Bava Kamma 83b) assesses compensation for permanent damage (e.g. loss of arm or leg) as the reduction in wages of future employment over the victim’s lifetime. Specifically the Talmud (ibid.), quoting the Mishna, questions, “How is payment for permanent damage assessed?” The Talmud answers, “The court views the injured party as though he were a slave being sold in the slave market and appraises how much he was worth before the injury and how much after the injury.” One must pay the difference between these two amounts.”

The reader may ask, “What is the assessment if the injured party has a different profession other than a slave. The Rosh (Bava Kamma 8:1) explains that the assessment as a slave is the default base. If the victim has a different profession then he is awarded compensation according to his previous employment.

Pain 

The Talmud (Bava Kamma 83b) quoting the Mishna asks, “How is payment for pain assessed where other payments are not involved?” The Talmud (ibid) initially answers that the court evaluates how much a person with a similar threshold for pain as the victim is willing to receive in order to bear this pain. The assailant pays this amount.

The Talmud (ibid. 85a) questions the fairness of this assessment because a person may demand an exorbitant amount of money to endure pain. Rather the Talmud reasons that fair compensation is how much a person would pay to avoid pain. For example the amount a person would pay for an anesthetic before an operation. In this manner the assailant pays a much smaller amount. The initial amount (i.e. enduring pain) reflects the principle of reciprocity, “burn for a burn”. However the payment must be reasonable for the assailant based upon Proverbs 3:17, “Its (the Torah’s) ways are ways of pleasantness, and all its paths are peace “.

Medical Care

Although the Torah refers to medical care after a quarrel the Talmud (Bava Kamma 85a) understands that the assailant must pay after any injury in which he is responsible. This payment includes the fees of the doctor or any medical practitioner as well as medication.

Temporary Loss of Employment

Although the Torah refers to temporary loss of employment after a quarrel, the Talmud (Bava Kamma 85a) understands that the assailant must pay after any injury in which he is responsible.  This payment compensates the victim for loss of income during his recovery, based upon his profession after recovery. The payment for permanent damage (נזק) covers the loss of income for his lifetime. Hence the amount of compensation for temporary loss of employment depends upon the degree of injury after recovery (viz. minor – maintains profession or major- new profession).

Embarrassment 

Although the Torah does not explicitly cite a verse for embarrassment the Talmud (Bava Kamma 86a) derives this liability from 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 interprets the “cutting of the hands” as a monetary payment for embarrassment.

Similar to the Talmud, Rashi, quoting the Sifre on this verse, explains that monetary compensation is implied. He cites a verbal analogy (2^nd of the 13 principles of Torah interpretation of Rabbi Yishmael). In reference to scheming witnesses the Torah (ibid. 19:21) states that the court must apply the same punishment that they had intended for the court to apply to the victim will be applied to them if they are disproven. In both verses the Torah writes, “Do not have pity – תחוס לא”. Just as in the latter verse monetary compensation is implied because the Torah (ibid.) states, “An eye for an eye” so too in the case of embarrassment.

The Talmud (Bava Kamma 83b) states that this payment depends upon the status of the person who embarrasses and the victim.  The embarrassment from a low person is greater than that from an honourable person and therefore he must pay a larger amount than the latter. Similarly the payment for a distinguished person who is embarrassed is greater than of a regular person. The Rosh (Bava Kamma 8:7) limits the payment for an honourable (i.e. wealthy) person to one who was previously wealthy to reduce the liability of the assailant.

Summary of Payments

The Talmud provides a framework for these 5 payments as summarized in the following table which list the categories of damages in Hebrew and English with the underlying consideration for payment.