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Daf 91 is being started for the memory of my grandmother, may she rest in peace, and for the memory of Avraham ben Estiru. May God comfort them. Amen.
We are three, four, five, and six lines from the bottom. The case is as follows: an ox gored someone and killed him, and it also caused monetary damage. Let us review the law. If a tam kills someone immediately, the animal must be put to death. However, in this case it also caused monetary damage. Ordinarily, a tam that causes damage pays half the damage, but that payment is made from the animal itself and may not exceed the animal’s value. Therefore, since this animal no longer has any value once it is condemned to death, the law is that we judge it according to the laws of capital cases, but we do not judge it according to the laws of monetary cases. The owner does not have to pay the monetary damages.
Rashi explains that the payment of a tam is taken from the animal itself and may not exceed the animal itself. Consequently, there is no longer an animal from which to collect the payment, because the animal is being put to death, and therefore there is no payment for the monetary damages.
The Gemara then says that if a muad killed and caused damage, we judge it according to the laws of monetary cases, and we also judge it according to the laws of capital cases. That is understandable, because a muad pays the damages from his own pocket. Therefore, even if the animal is being put to death, the owner must still pay the damages.
However, what is the law if the court first judged the animal in the capital case? In that situation, we do not return and judge it in the monetary case. This seems difficult. Since the payment is not being taken from the animal but from the owner’s pocket, why should it matter that the capital judgment came first? Let the court judge the animal once again for the monetary damages. The fact that the animal has no value should not matter, because the payment is being made from the owner’s resources.
The Gemara explains that this follows the view of Shimon HaTemani, who maintains that an assessment must be made before the court. Even when a person strikes someone with his fist, the court must examine the fist and determine whether it was capable of causing the damage. Accordingly, when an animal causes damage, the court must see the animal and determine whether it was capable of causing that damage.
Since the court has already judged the animal in the capital case, it will not delay the execution in order to make that assessment. Once the court has issued a death judgment, the punishment must be carried out without delay. Even though the animal is still alive, the court will not spend additional time making an assessment. It will say, in effect, “Take the animal and put it to death.” Once the court has judged the animal liable for death, it will not delay the judgment in order to assess whether it was capable of causing the damage. Therefore, even though the owner would ordinarily pay from his own pocket, if the animal was killed first, he does not have to pay the damages.
Rava asks: Are you telling me that this law follows only the opinion of Shimon HaTemani? I can explain it even according to Rabbi Akiva. The case may be one in which the owner of the animal fled. According to Rabbi Akiva, an assessment is not required; testimony that the animal caused the damage is sufficient. Nevertheless, the case may be that the court judged the animal liable for death and then the owner fled. Since the owner is no longer present, the court cannot collect money from him, and therefore the animal is killed without payment of the damages.
The Gemara challenges this explanation. If the owner fled, why do we need a case in which the court first judged the animal in the capital case? Even if the court did not issue that judgment first, the owner is absent, and the court cannot collect the money from him. Why establish a case in which the animal was judged first?
The Gemara answers that the court had already accepted the testimony that the animal caused the damage. The witnesses came to court and testified in the owner’s presence. Afterward, the owner fled. The owner of the animal was therefore initially present, but he later ran away, and he had no other assets from which the damages could be collected.
Since the court had already judged the animal in the capital case, it could no longer judge the monetary case, because the animal had to be put to death immediately. The Gemara states: “He fled; therefore, we have no one from whom to collect, and he had no assets.”
What, then, is the case being taught? The animal killed and also caused damage. The owner was present when the case came before the court, and the court accepted the testimony and issued a judgment. He then fled, so the court could not collect from him. If he had remained present but had no assets, what could the court have collected from him? And if the court had not yet judged the capital case, what could it have collected from? It could have collected from the animal itself, specifically from its ability to work and plow.
According to Rabbi Akiva, an assessment of the animal is not required. So why does the court not first judge the monetary case and allow the animal to work for its damages, and only afterward judge the capital case and put it to death? In that way, the court could collect both the damages and carry out the death sentence.
The Gemara answers that the animal’s work is considered payment from outside the animal itself. The animal itself is one thing, while the income produced by renting it out for plowing is another. A tam does not pay from the owner’s outside resources. Its payment is limited to the animal itself. Therefore, the court cannot collect the animal’s earnings for the damages. Once the court judges the animal liable for death, its value is nothing, and there is no payment to collect.
Nevertheless, the discussion concerning a muad can follow the view that the animal must be present for an assessment. Once the court has judged it in the capital case, it cannot make the assessment, because the animal must be killed immediately. Thus, according to that view, the monetary case cannot be judged.
Even according to Rabbi Akiva, who does not require the animal to be present for an assessment, the case may involve an owner who was absent when the monetary case was to be judged. If he had been present, the court would first have used the animal for plowing and collected the damages from that activity; afterward, it would have judged the capital case and killed the animal.
The Gemara now asks whether the court must assess the object that caused the damage. Must the judges examine the object and determine whether it was capable of causing the damage being claimed? When an object kills, perhaps the court must examine it to determine whether it was capable of taking a life. But when the issue is monetary damage, perhaps anything can cause damage, and no assessment is necessary.
Rashi explains that an assessment is required in a capital case because the Torah says, “with a stone in his hand that could kill.” There is therefore a scriptural requirement that the court examine the object to determine whether it could have caused death. With regard to damages, however, an assessment may not be necessary, because even an object that is not normally capable of causing serious damage can sometimes cause damage.
The Gemara asks again: Does the court have to make an assessment in a case of damages? With regard to death, the Gemara assumes that an assessment is required. With regard to damages, is an assessment required or not?
Consider a pit. How deep must a pit be in order to create liability for death? Ten handbreadths. A pit that is ten handbreadths deep is the standard measure for liability in a case of death. If an animal falls into a pit that is less than ten handbreadths deep, however, the owner can still be liable for damages.
Perhaps this proves that for damages we measure from the bottom of the pit upward, and even a pit of one handbreadth can cause damage. The smallest pit can therefore create liability for damages, indicating that no assessment is necessary. If anything can cause damage, the court does not have to examine whether this particular pit was capable of causing the damage.
The Gemara rejects this proof. Instead of measuring from the bottom upward, perhaps we measure from the top downward. A pit of ten handbreadths creates liability for death, while a pit of nine handbreadths creates liability for damages. But for anything less than nine handbreadths, an assessment is required. In other words, ten handbreadths is certainly enough for death, nine is certainly enough for damages, and with anything less, the court must determine whether the pit was capable of causing the particular damage.
The Gemara brings another proof. If someone strikes a person near the eye and blinds him, or strikes near the ear and causes him to lose his hearing, what is the law? The injury was not a direct blow to the eye or the ear. The court must therefore assess whether a blow of that kind would normally cause blindness or deafness. If the person became blind or deaf, perhaps the result was due to some weakness or unusual condition on his part. This would indicate that even in cases of damages, an assessment is made.
The Gemara explains that the court requires an assessment because the injury was indirect. A blow near the eye should not normally cause blindness, and a shout near the ear should not normally cause deafness. The result may have occurred because the injured person had an unusual susceptibility or bad fortune. Therefore, the person who caused the injury is not automatically liable in the same way as someone who struck the eye or ear directly.
The Gemara discusses a person who frightens another person. For example, someone shouts into his fellow’s ear, and the other person becomes deaf. Why should the one who shouted be liable? He did not tear the person’s ear and did not strike it directly. He frightened him, and the frightened person allowed the fear to affect him, causing himself to become deaf or blind. In such a case, the result is considered self-inflicted in the sense that the frightening person only caused the circumstances; the injured person’s reaction produced the actual damage.
However, if one holds another person’s ear and blows into it, that is a direct act. Since he is holding the ear and blowing into it, the damage is attributed to him. The case involving the servant is therefore not a proof that no assessment is required. He was struck near the ear and became blind, but that was not a direct blow. Ordinarily, an assessment would be required, and the court would determine that such a blow should not cause blindness. That case is different because the result was considered to have come from the injured person’s own reaction.
The Gemara asks whether the five payments are all assessed by the court. The five payments are damages, pain, medical expenses, loss of work, and humiliation. Damages and humiliation can be evaluated immediately. But how can the court immediately assess medical expenses and loss of work? The court does not know how long the person will remain ill, how many doctors he will need, or how many days he will be unable to work.
The Gemara answers that the court assesses the expected period of illness and incapacity. It determines how many days the person is likely to remain bedridden with this injury, how much medical treatment and medication he will need, and how long he will be unable to work. The court then awards the payment immediately based on that assessment rather than waiting until the person fully recovers.
What happens if the court assessed that he would be ill for a certain period, but his condition worsened and he required additional treatment or remained unable to work for longer than expected? He receives only the amount determined by the court. We assume that the court made the proper assessment, and if the person became ill for longer afterward, he is considered negligent for not taking care of himself properly.
The reverse is also true. If the court assessed that he would be ill for a certain period, but he recovered sooner, he receives the full amount that was assessed. His good fortune helped him recover early, and he should not be penalized for that. He receives the entire payment that the court awarded.
This shows that the court does make an assessment regarding the length of the illness and the period of lost work. The Gemara responds that everyone agrees that the court must assess how long the person is likely to be ill and how long he will be unable to work. The original question was not about that type of assessment. The question was whether the court must examine the weapon or object itself and determine whether it was capable of causing the damage.
Just as a fist can be brought before the court and examined to determine whether it was capable of causing the damage, perhaps every object that causes damage must be brought before the court for examination. This would prove from the view of Shimon HaTemani that an assessment is required even in cases of damages.
Earlier, we discussed the dispute between Shimon HaTemani and Rabbi Akiva. Shimon HaTemani says that the assessment must be made by the judges themselves. Rabbi Akiva says that the court may rely on the testimony of the witnesses. Nevertheless, even according to Rabbi Akiva, an assessment is still required. The witnesses may testify that they saw the object cause the damage and that it was capable of doing so, while according to Shimon HaTemani the object itself must be brought before the court so that the judges can examine it.
The Gemara returns to the case in which the court assessed the injured person and he recovered early. He receives the full amount that was assessed. Rav Ashi says that if the court assessed that he would be ill for the entire day, but he recovered after half a day and went back to work, he still receives payment for the entire day. The court showed him consideration, and his recovery is attributed to his good fortune.
The Mishnah discussed humiliation: if a person spits in front of another person and the spit reaches him, he must pay four hundred zuz for the humiliation. If the spit reaches only the person’s garment, however, there is no payment for humiliation against the garment.
The Gemara asks why this should not be at least like verbal humiliation. When someone verbally embarrasses another person, the person’s body is not physically affected, but he is nevertheless embarrassed. Here, too, when someone spits in front of another person, the person’s body is not physically harmed. Why should the law be different merely because the spit reaches the person’s body?
The Gemara answers that the source of liability for humiliation involves a physical act. The source is the case of the woman who was protecting her husband and grabbed the private area of the other man. Although she intended to save her husband, she performed a physical act and therefore had to pay for the humiliation she caused. Verbal embarrassment alone, when it does not affect the person physically, does not create the same liability.
Rav Yehudah said in the name of Rav: “Everything depends on the honor of the person.” The amount of the payment is relative to the person who was humiliated. If the injured person is highly respected, the payment is greater; if he is less respected, the payment is smaller.
The Gemara asks whether the words of the first Tanna are intended to be lenient toward the person who caused the humiliation or stringent toward him. Perhaps when the Mishnah says four hundred zuz, that is the highest amount, and a poor person would receive less. In that case, the first Tanna is being lenient toward the one who caused the humiliation by setting four hundred zuz as the maximum.
Alternatively, perhaps the first Tanna is being stringent. Four hundred zuz may be the amount paid to a poor person, while a wealthy person, whose humiliation is greater, would receive even more. The question is whether the four hundred zuz stated in the Mishnah is the amount for a wealthy person or for a poor person.
Rabbi Akiva said that even a poor person is assessed as though he were a person of standing who had lost his money. This gives the poor person an advantage, because his humiliation is evaluated at a higher level. The Gemara reasons that since Rabbi Akiva came and said that even a poor person receives four hundred zuz, the first Tanna must have been referring to four hundred zuz as the highest amount, the amount paid to a wealthy person. Rabbi Akiva then added that even a poor person receives four hundred zuz.
There is a story about a woman whose hair was pulled out. Rabbi Akiva required the person who pulled it to pay four hundred zuz. If the first Tanna had meant that four hundred zuz was the amount for a poor person, Rabbi Akiva should have required an amount greater than four hundred zuz. Since Rabbi Akiva also stated four hundred zuz, it must be that the first Tanna was setting four hundred zuz as the maximum payment, even for a wealthy person, while Rabbi Akiva extended that amount to a poor person as well.
The Gemara then asks whether a person may be given time to pay this payment. In ordinary damages, when one person causes another person an actual financial loss, the payment must be made immediately. But perhaps humiliation is different, because the injured person did not suffer a financial loss. The court may therefore allow the person time to pay.
The Gemara brings a case involving a woman who was sitting outside a store. A person placed some oil in front of her. She removed her wig, took the oil, and placed it on her head. The matter was brought before Rabbi Akiva: must she pay for the humiliation she caused herself by exposing her hair merely to use the oil?
Rabbi Akiva answered that she may do whatever she wants to herself. She is permitted to expose or humiliate herself, but if another person humiliates her, he must pay. This demonstrates that a person may be free to damage or humiliate himself, while another person is nevertheless liable for causing that harm.
The Gemara says that one explanation was like a person struggling in deep water who finally brings up a piece of pottery. After all the effort, the result is insignificant. The attempt to avoid payment by relying on the idea that a person may harm himself produced only a weak answer, because the Mishnah itself states the opposite: although a person may not harm himself, he is not liable for doing so. Rabbi Akiva’s case appears to say that he is permitted to harm himself. Which is it—permitted or exempt?
The Gemara answers that there are two distinct cases. With regard to physically injuring himself, a person may not be permitted to do so, but he is exempt from payment. With regard to humiliating himself, however, he is permitted to do so. Rabbi Akiva was discussing humiliation, not physical injury.
The Mishnah’s discussion was about humiliation, and Rabbi Akiva’s statement was also about humiliation. Therefore, when a person humiliates himself, he is permitted to do so, and when another person humiliates him, the other person must pay. There is no need to bring proof from physical injury, because the case here concerns humiliation.
The Gemara nevertheless asks whether a person is truly permitted to damage himself. A baraita teaches that if a person makes an oath that he will harm himself and then does not harm himself, he is liable for failing to fulfill his oath. One might think that he is exempt, because he did not fulfill the oath, but the Torah teaches that the law depends on the nature of the oath.
Just as an oath to do something positive is binding only when it concerns an optional act, because one cannot make an oath to perform a mitzvah that he is already obligated to perform, so too an oath to do something harmful is binding only when the act is optional. If a person swears that he will do something positive that is voluntary and then fails to do it, he must bring the required offering. Similarly, if he swears that he will do something harmful to himself, the oath may be binding if the act is considered voluntary.
Perhaps the harm mentioned in the baraita refers specifically to physical injury. The Gemara responds that this is not necessarily a proof. The person may have sworn to cause himself some other kind of harm, and the baraita may not be discussing an actual physical wound.
The Gemara brings the rule that a person may make an oath regarding himself or regarding another person. If he swears that he will make another person fast, it is possible to fulfill the oath by preventing that person from eating. Likewise, if he swears that he will harm another person, the reference may be to striking him or injuring him. This suggests that the case of harming oneself may also refer to physical injury.
The Gemara concludes that the matter may be a dispute among the Tannaim. One view maintains that a person may not inflict physical injury upon himself. This may be derived from the verse, “I will demand your blood for your lives.” If a person commits suicide, he is held responsible for his own blood. Rabbi Elazar explains the verse as teaching that a person is accountable for his own blood, indicating that a person is not permitted to destroy himself.
The Gemara rejects the proof. Suicide may be different because killing oneself is an extreme act. The fact that a person is forbidden to take his own life does not necessarily establish that he is forbidden to cause himself a lesser injury.
The Gemara brings another proof. When a person dies, the law requires mourners to tear their garments. This is not considered following the ways of the nations, because it is a recognized expression of mourning. Rabbi Meir ben Azariah said that if someone tears excessively, he violates the prohibition against needless destruction. The required tearing is limited, but tearing beyond that is wasteful.
Perhaps the prohibition applies only to clothing. Once a garment is torn, it cannot be repaired in the same way, whereas the body can heal itself. Therefore, damaging clothing may be worse than causing an injury to the body, and this source cannot establish that a person may not injure himself.
Rabbi Yohanan used to refer to his clothing as the things that gave him honor. Rav Chisda, when walking among thorn bushes, would lift his garment so that it would not be torn, even though his legs would become scratched and cut. When people asked him why he protected the garment while allowing his legs to be injured, he answered that his leg would heal, but his garment would not. This indicates that damaging a garment may be considered more serious than damaging the body.
The Gemara then brings the view of the great rabbi. Regarding a nazirite who became impure, the verse says that he must bring an offering for the sin he committed against his soul. What sin did he commit? He did not harm anyone. Rather, he afflicted himself by abstaining from wine. Who required him to refrain from wine? The Torah permits wine, yet the nazirite voluntarily caused himself distress by accepting a prohibition upon himself. He therefore requires atonement.
The Gemara reasons that if someone who merely abstains from wine requires atonement, then certainly someone who afflicts himself in any other way, including fasting or causing himself physical distress, is acting improperly. This is the view that maintains that a person may not harm or afflict himself.
We now continue with the next matter. The Mishnah stated that if a person cuts down his own trees, even though he is not permitted to do so, he is exempt from payment. If someone else cuts them down, that person is liable. Obviously, the case concerns a fruit tree. The owner is not permitted to cut it down, but if he does so himself, he does not owe anyone money. If another person cuts it down, however, that person must pay.
The Gemara presents a case in which a person brings a claim against his fellow: “You killed my ox,” or “You cut down my saplings.” The other person responds, “That is true, but you told me to do it.” The witnesses saw him cut down the tree, and he admits that he did so, but he claims that the owner instructed him to do it. The law would be that he is exempt.
This seems difficult. If that is the law, no one will be able to collect damages. Whenever someone claims that another person damaged him, the defendant can say, “You told me to do it.” Why should the court believe him merely because he says that the owner gave him permission? Such permission is not the normal thing to do. Where is the credibility for his claim?
Rava said: What do you want me to do—erase the baraita? The baraita clearly teaches this law. The response was that there was no need to erase the baraita; it had to be explained. It refers to an ox that was already destined to be killed and to a tree that was already destined to be cut down.
For example, the ox may have killed someone and therefore been liable to death, or it may have been an ox that was sentenced to be stoned. The tree may have been an idolatrous tree that was destined to be cut down, or a tree standing in the public domain that posed a danger because it might fall on someone. Since the object was already destined to be destroyed, when the person says, “You told me to do it,” we can believe him.
The Gemara asks: If that is the case, what monetary claim does the owner have? The ox was already going to be killed, and the tree was already going to be cut down. Why would the owner claim that the other person destroyed it?
The answer is that the owner wanted to perform the mitzvah himself. He wanted to be the one to kill the ox or cut down the tree, and the other person took that opportunity away from him. The claim is for the value of the mitzvah that was taken from him.
The Gemara brings a source for such a claim from the laws of covering the blood. After the slaughterer spills the blood of a bird, he must cover it. If someone else comes and covers the blood before the slaughterer does so, the person who covered it must pay the slaughterer ten zuz. He deprived the slaughterer of the opportunity to perform the mitzvah. Similarly, in our case, the owner wants compensation because the other person took away his opportunity to perform the mitzvah.
The Gemara returns to the types of trees that may be cut down. A palm tree that produces a certain measure of dates each year may not be cut down. The Gemara questions this measure by comparing it to an olive tree. With regard to an olive tree, a smaller quantity of olives is already considered significant. The explanation is that olives are more valuable, so a smaller quantity has the same importance as a larger quantity of dates.
There is a statement that a person’s son died because he cut down a fruit tree before its time, while it was still producing fruit. The point is that cutting down a productive tree prematurely is a serious act. The tree was cut down before the proper time, and the statement describes the son’s death as corresponding to the premature cutting of the tree.
However, if the wood of the tree is worth more than the fruit, the tree may be cut down. The prohibition against cutting down a fruit tree applies when the cutting is destructive. If using the wood is more valuable than preserving the fruit, the cutting is constructive, not destructive.
The verse says, “Only a tree that you know is not a tree for food may you destroy.” The Gemara asks: What does it mean, “a tree that you know”? If the verse is speaking about a non-fruit-bearing tree, why does it need to say “that you know”? We already know that a non-fruit-bearing tree may be cut down.
Rashi explains that the verse refers to a situation in which one is at the border and there are no other trees available. One knows that this is the only tree in the area, and it happens to be a fruit tree. Nevertheless, if the tree is needed for the military campaign, it may be cut down. The verse teaches that even a fruit tree may be cut down in such a case.
The following verse teaches that one should first cut down the non-fruit-bearing trees rather than the fruit trees. If both types are available, the non-fruit-bearing trees should be used first. The fruit trees should be preserved whenever possible.
The Gemara asks whether this preference applies even when the wood of the fruit tree is more valuable than the wood of the non-fruit-bearing tree. Perhaps the verse limits the preference to a case in which the non-fruit-bearing tree is comparable in value. If the wood of the fruit tree is more valuable, then the fruit tree may be cut down first, because the cutting is economically constructive.
Rashi explains that the preference for the non-fruit-bearing tree applies only when comparing a non-fruit-bearing tree with an ordinary fruit tree. If the wood of the fruit tree is more valuable than the benefit of its fruit, it may be cut down. The rule of giving precedence to the non-fruit-bearing tree is therefore limited.
The Gemara relates that Shmuel was brought dates. He tasted them and said that they tasted like wine. He realized that the date palms had been planted next to grapevines and that the vines were affecting the date trees. The date trees were weakening the grapevines to the point that the taste of the wine could be detected in the dates.
Shmuel instructed the workers to uproot the date palms. Although the date palms were fruit trees, they were damaging the neighboring grapevines. Since the grapes and wine were more valuable, the date trees could be removed in order to preserve the more valuable crop.
Shmuel also explained that one can replace the date palms with other date palms using the proceeds from the wine, but one cannot replace the wine with grapes using the proceeds from the dates. The wine was more valuable, and the date trees were damaging the vines. Therefore, the less valuable fruit tree could be uprooted to protect the more valuable crop.
The common denominator is that cutting down a fruit tree is prohibited only when the cutting is destructive. If the cutting is constructive, it is permitted. For example, one may cut down a fruit tree in order to use its wood when the wood is more valuable, or in order to preserve another tree that is more valuable and is being damaged by it. In such cases, the act is not considered destructive, and the tree may be removed.