Eye for an Eye (Analysis of text) – Part 3

Shulchan Aruch

The Talmud provides the rationale and many considerations for these payments. The Shulchan Aruch (Chosen Mishpat 420), as a code of law, provides details for these payments and rules about disputes in the Talmud. The following table lists the type of payment in Hebrew and English with associated paragraph in the Shulchan Aruch.

Permanent Damage

The Shulchan Aruch (ibid. 15), following the Talmud, only allows compensation for loss of income due to injury. However unlike settlements of secular courts, there is no compensation for a decrease in quality of life and psychological impacts of the injury (e.g. depression or trauma). For example if a person suffered a leg injury and could not participate in amateur sports as before he would not receive compensation for a decrease in quality of life.

The Shulchan Aruch (ibid.) and associated commentaries rule that the assessment depends upon the profession of the victim as follows:

• If loss of permanent wages for the victim in his profession exceeds that of a slave then he is awarded a settlement according to his profession (e.g. a jeweler who suffered a hand injury) – Rema (ibid.). The victim must bring proof of his profession and wages to claim this larger amount.
• If loss of permanent wages of a slave exceeds that of the injured party’s current profession (e.g. a jeweler who suffered a leg injury) then he is awarded a settlement according to the former because he may change professions (Meirat Einayim commentator on the Shulchan Aruch ibid. 17).

The Shulchan Aruch rules that a lump sum payment for loss of income is a direct assessment and does not consider a potential increase in wages due to promotions and expected inflation.

Pain

The Shulchan Aruch (ibid. 16) rules that the assailant compensates the victim according to the amount that the latter would pay to avoid pain. Maimonides (Laws of Damages 2:9) adds that the court considers the nature of the victim. For example a sensitive or delicate person would be awarded a larger settlement than a heavy laborer.

Medical Care

The Shulchan Aruch lists a number of considerations for medical payments as follows:

• The court estimates the duration of recovery and expenses per day to obtain a lump sum which the assailant must pay up front. If the injured party recovered earlier or later than the estimate the initial payment remains (ibid. 18).
• The assailant can opt for a daily payment at his discretion. However if recovery from the injury is longer than expected the assailant is liable until recovery (ibid. 19). If the injured party did not follow the doctor’s instructions and the recovery was longer then the assailant is not liable for this extension (ibid. 20).
• If the assailant offers to treat the victim himself or suggests a doctor who works for free (e.g. a relative of the assailant) the victim has the right to reject both offers (ibid. 21). The Talmud (Bava Kamma 85a) explains that the victim may be uncomfortable with the victim treating him. In the language of the Talmud the victim considers the assailant as an ambushing lion. In reference to a doctor who works for free the victim may say, “A doctor who works for nothing is worth nothing”. The Rosh (on the Mishna) explains even if the doctor is qualified he may not treat the victim conscientiously without remuneration. The same applies if the doctor is willing to accept a reduced fee.
• If the assailant offers an out of town doctor who will accept a lower fee, the victim may refuse this offer. This doctor may not be conscientious because his reputation is not affected as when he is local (ibid. 22).
• By contrast, if the victim says to the assailant “Give me the payment and I will make the arrangements by myself.” The assailant may refuse this offer and claim that the victim may not handle the matter properly and later blame the assailant giving the latter a bad reputation (ibid. 23).

Temporary Loss of Employment 

The Shulchan Aruch (ibid. 17) lists a number of considerations for temporary loss of employment on a per day basis as follows:

• If the victim will return to his previous employment (e.g. temporarily bed ridden or swelling of hand or foot) then he receives payment according to this employment.
• If the victim will not return to his previous employment (i.e. loss of hand or foot) then he receives payment according to his new reduced income.
• The daily payment must be reduced somewhat because the victim is not working and therefore can enjoy to a limited extent his time off from work. This reduction is based upon what a person would accept to refrain from work and depends upon how strenuous is the work.

Embarassment

The Shulchan Aruch (ibid. 24), following the Talmud (Bava Kamma 83b), rules that this payment depends upon the status of the person who embarrasses and the victim as discussed above.

In addition the Shulchan Aruch (ibid. 38) rules that payment for embarrassment does not include insults or even spitting on the victim’s clothes. Rather the embarrassment must be on the victim’s person. However the court (ibid.) is authorized to assign fines for lesser forms of embarrassment (e.g. insults).

The author has included the following appendices to provide additional discussion about these payments:

1. Appendix 1 examines the degree of liability to these 5 payments based upon the nature of the injury whether intentional, negligent, avoidable, and unavoidable.
2. Appendix 2 considers different combinations of payments (i.e. 1 to 5) depending upon the nature of the injury.
3. Appendix 3 analyzes the power of present day rabbinical courts to assign damages to an injured party.

Method of Payment

In addition to detailing the individual 5 payments the Shulchan Aruch (ibid. 420) adds the following considerations for the method of payment:

• 27 – After the court renders judgment the assailant must immediately pay the victim for all of the payments except embarrassment. The latter payment may be delayed because he did not damage the victim monetarily. The Gaon of Vilna (note 13) remarks that payment for an injury only involving pain may similarly be delayed because it does not involve a monetary loss.
• 28 – To discourage fraudulent claims the court must assess if the assailant actually caused the injury that the victim claims. For example if the victim claims that the assailant threw a stone at him he must bring the stone to the court. In addition at least two witnesses must see the injury and testify before the court. If the victim lost the stone and claims that the stone was large enough to inflict damage then the victim takes an oath before the court and collects payment.
• 33 – If the victim claims that the assailant made him blind or deaf the court does not accept his claim without proof. For example the court must check the victim over several days to determine his actual condition.

In addition to payment the assailant must sincerely ask forgiveness from the victim. In turn the victim should not be cruel and accept the apology (ibid. 422:1).

Conclusion

This article discussed the biblical citation, “An eye for an eye” and showed that this statement is not literal because the ways of Torah are pleasant and not vindictive based upon Proverbs 3:17. The verse follows, “Its (the Torah’s) ways are ways of pleasantness, and all its paths are peace “.

Rather the Talmud proves that the assailant must pay the victim for 5 types of damages inflicted. The author traced these damages through scripture, Talmud, and Shulchan Aruch and showed both the depth and fairness of Halacha taking into account the suffering of the injured party and the extent of the liability of the assailant.