Masechet Bava Kamma 89a-95b

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Medical Bill
25 Mar 2009
Torah

The Coming Week’s Daf Yomi by Rabbi Adin Steinsaltz

This essay is based upon the insights and chidushim (original ideas) of Talmudic scholar Rabbi Adin Steinsaltz, as published in the Hebrew version of the Steinsaltz Edition of the Talmud.

Bava Kamma 89a-b

When a couple gets married, a ketubah – the agreement that is signed by witnesses delineating the obligations that the husband has towards his wife – is written. Oftentimes, when the Gemara refers to the ketubah, it means specifically the monetary responsibilities that the husband has accepted in this relationship, and, in particular, the amount of money that he guaranteed to her in the event of divorce or death.

It was traditional for the wife to also bring financial assets into the marriage, which were divided into two –

Our Gemara introduces the idea of a woman selling her ketubah for tovat hana’ah. In the case of selling a ketubah, the idea of tovat hana’ah is the value of the ketubah on the open market while the marriage still exists. Like any commodity, the ketubah’s potential value may be of interest to an investor. Since in the event of divorce or of the husband’s death the woman will receive a lump sum payment, someone may be willing to pay some fraction of the potential value. Of course, should the wife die first, according to takanat Usha (see daf 88) the husband will inherit her, leaving nothing for the “investor,”  something that will limit the amount that an investor might be willing to pay.


Bava Kamma 90a-b

The Mishnah on our daf rules that ha-toke’a la-havero noten lo selah – that if someone hits his friend, and he remains uninjured, he is obligated to pay him a selah because of the embarrassment that he caused. Rabbi Yehuda quotes Rabbi Yossi HaGalili as requiring payment of a maneh.

The definition of toke’a is a matter of some dispute. While Rashi says that it means he hit him on his ear, others suggest that he hit him on his neck with his fist, that he shouted in his ear, or even that he did not touch him at all, rather he clapped his hands together in a derogatory manner towards his friend. The payment of a sela or a maneh is understood by Rashi (above on daf, or page, 36b) as a standard payment for embarrassment, but if any injury occurred, that would be evaluated and paid for separately. Others suggest that it covers pain and suffering – tza’ar – as well. The Rambam rules that the payment of a sela or a maneh includes all damages, since the Mishnah is discussing a case where the main damage that was done was the embarrassment.

The Gemara‘s first concern is the type of maneh that is required for payment – is it kesef tzuri or kesef medina?

Generally speaking, during the time of the Talmud there were two types of coins. Matbe’ah tzuri was a silver-based coin that was viewed as being biblical money. Kesef medina were coins that had the same names as the more valuable matbe’ah tzuri, but were made of cheaper metals and were worth one-eighth the value of kesef tzuri. Different values for coins with identical names were not uncommon in the ancient world and this phenomenon still exists in some places today, where paper money may have the same name as a gold coin, for example, but is worth significantly less. It is therefore essential to determine which coin is being discussed.


Bava Kamma 91a-b

As we have learned, one of the five types of damage that a person must pay if he injures his fellow is boshet – embarrassment. The Mishnah (90a) lists a number of cases where a person will pay a set figure for embarrassing another, e.g. slapping him, pulling his hair, removing his clothing, and so forth.

One particular situation mentioned in the Mishnah is someone who spits on his friend such that the spittle reaches him. In such a case, the Mishnah rules that a penalty of 400 zuz will be assessed.

Rav Papa infers from the language of the Mishnah that the penalty will be assessed only if the spittle lands on the person, but not if it lands on his clothing. In response to the Gemara‘s question that this should be no worse than embarrassing a person by means of speech, the Gemara quotes a teaching of Rabbi Yossi bar Abin who taught in Israel that no penalties are assessed against someone who embarrasses his fellow by means of speech.

The Rosh explains that limiting a payment of damages for embarrassment to cases of physical contact stems from the passage (Devarim 25:11) that describes a situation where a woman steps in to protect her husband and defends him by embarrassing his assailant. It should be noted that although there is no standard payment assessed by the courts, the geonim state clearly that even non-physical embarrassment is a serious matter, and, if done in a public setting, can cause someone to lose their share in the World to Come. According to the geonim, a verbal assault and embarrassment may be worse than a physical attack, and it is up to the bet din to establish the appropriate punishment in each case. The Talmud Yerushalmi describes a case where a large sum was assessed in a particular case of verbal assault. According to many, even though we ordinarily do not assess kenasot (judicial penalties) today, punishments for acts like these can be established by the courts even today.


Bava Kamma 92a-b

Your mother always told you not to skip breakfast. What do the Rabbinic Sages have to say on the matter?

Our Gemara quotes Rava as asking Rabbah bar Mari for the source for the Rabbinic dictum that you should make sure to eat early in the morning – in the summer because of the heat and in the winter because of the cold. Furthermore the Rabbis taught that sixty men cannot catch the individual who made sure to eat in the morning.

Rabbah bar Mari responded with a passage from Sefer Yeshayahu (49:10) which indicates that eating in the morning will protect a person from heat and cold. Rava suggested a pasuk (verse) from the Torah. The passage in Sefer Shemot (23:25) teaches:

  1. Va-avadetem et ha-Shem Elokekhem – that first one must serve God – understood by Rava as morning prayers, then
  2. U-berakh et lahmekhah ve-et me-mekhah– your bread and water are blessed, and finally
  3. Va-hasiroti mahalah mi-kirbekhah – illnesses are removed from you.

This approach matches current medical thinking that breakfast is the most important meal of the day. After hours of sleep, during which time a person does not eat or enjoy any sustenance, the body needs a certain amount of liquid and nutrition in order to meet the individual’s immediate needs. Although healthy people have stored energy reserves in their bodies that allow a person to function even without a morning meal, nevertheless, a regular breakfast allows for normal activity throughout the day.

The passage quoted by Rava teaches that machalah is removed. The Gemara identifies machalah specifically with marah – diseases of the gall bladder. While this organ certainly can become diseased, it is odd to find an emphasis on these diseases specifically. While the Gemara may be referring to the gall bladder as representative of digestive diseases generally, some suggest that this is a reference to the basic belief of Greek medicine (one that was popular until recent times) that the body was composed of four humoursarba marot – and that a lack of balance between these humours could lead to both physical and spiritual diseases.


Bava Kamma 93a-b

We have been discussing cases where a person will be held responsible for injuring his fellow. What if the person who was injured requested that his attacker beat him? What if he assured him that he would not be held responsible for the injury?

According to the Mishnah (92a) we distinguish between personal injury and damage done to property. If a person asked to be blinded, have his arm cut off, or his leg broken, the person who causes the injury will still be held responsible – even if he assures him that he will forgo payment. If he asked his friend to tear his clothing or to break his vessel he will be responsible, although if he assured his friend that he would forgo payment, then he will not be held responsible.

Several explanations are given by the Gemara to explain the difference between personal injury where the attacker will always be held responsible, and damage done to property where under certain circumstances he will not.

Rav Sheshet says that it is an issue of pegam mishpacha – the entire family will be embarrassed if the person now is blind or missing an arm, so he does not have the ability to allow such an injury to be done to him.

Rava says that we work with the assumption that no one will be willing to suffer such an injury to his body, even though he might be willing to allow such damage to be done to his property.

Rabbi Yochanan says that we cannot always be certain of the intent of a person who says the word “yes” or “no” in circumstances like these.

According to Rashi, Rabbi Yochanan’s statement should be understood to mean that we must take into account the tone of voice that is used. Perhaps when he said “sure” he meant it sarcastically. Based on this approach, there is no real difference between personal injury and property damage, since both of them will depend of the person’s intent, which is hard to gauge. Tosafot understand Rabbi Yochanan as ruling that we cannot accept a person’s willingness to be injured, and will always interpret his statement as refusing to be injured. With regard to property damage, even if he appears to change his mind we may interpret his statement to mean that he accepts all responsibility, since he did make the original request that his property be damaged.


Bava Kamma 94a-b

Our Gemara quotes a baraita that teaches that if a person makes his vineyard hefker – he declares it ownerless – and the next morning he goes and harvests it, he will be obligated to leave the tithes that go to the poor (peret, olalot, shikihah and pe’ah) but is free from the obligation of ma’aser (tithes to the Levi).

Generally speaking, only a farmer who harvests his own field is obligated in all of the tithes that are commanded in the Torah. A field that is truly hefker – it has no owner – will not need to have tithes taken from it by the person who comes to harvest it. In our case, however, it is clear that this vineyard was not truly hefker, which is why the Sages distinguished between some of the tithes – those distributed to the poor – that  still need to be brought and others that are no longer obligatory.

Most of the commentaries explain the difference between tithes based on our Gemara, which points to the repeated use of the word ta’azov – “leave behind” – specifically in those tithes that are to be left for the poor. The Gemara concludes from here that whenever there is some possibility that these tithes should be distributed, we are obligated to do so. The Rambam offers a different source for this ruling. According to him, we find the word sadchah – “your field” – only in reference to tithes for the poor. From this he concludes that whenever someone is harvesting his field – even if it was taken from hefker – he is still obligated in these tithes. With regard to the tithes for the priests and the Levites, since the term sadchah does not appear, the exemption of hefker will apply.

The various tithes to the poor discussed here are:


Bava Kamma 95a-b

On the previous daf the Gemara quotes a baraita that instructs the victim of a robber or of someone who paid forbidden interest on a loan to forgo repayment for his loss, even if the individual who stole his money wants to give it back to him. The reasoning behind this ruling is the desire to encourage a sinner to repent, and the fear that forcing him to repay all of his ill-gotten gains will discourage him from repenting. It should be noted that this is only if the individual steps forward and expresses a desire to repent. Someone who has been wronged can certainly approach the courts and demand justice.

The Gemara on our daf suggests that we must distinguish between a situation where the stolen item still exists – where it can be accepted in return – and where it no longer exists – where we will discourage the victim from demanding its return.

One case that appears to run counter to this argument is the case of a marish ha-gazul – a beam that has been built into a building. In that case, although the beam is still extant, we do not require that the beam be returned – only its value is paid. The Gemara explains that since the beam has been built into a structure, and removing it would cause a serious loss, we view the beam as if it had been destroyed, and only require payment.

What is clear from this ruling is that takanat marish (or takanat ha-shavim) may free the robber of the obligation to return the original object, but it does not free him of his obligation to pay. The Ra’avad and the Rashba explain that there are two separate situations of takanat ha-shavim. In one, if the object is still extant, but returning it would cause a significant loss, the robber will only have to return the value of the object. The second takana applies in a case where the stolen object no longer exists. In that situation, if the robber wants to do teshuva, then the victim should not accept repayment at all.


In addition to his monumental translation and commentary on the Talmud, Rabbi Steinsaltz has authored dozens of books and hundreds of articles on a variety of topics, both Jewish and secular. For more information about Rabbi Steinsaltz’s groundbreaking work in Jewish education, visit www.steinsaltz.org or contact the Aleph Society at 212-840-1166.

The words of this author reflect his/her own opinions and do not necessarily represent the official position of the Orthodox Union.