We begin today at the bottom of the page. We are continuing the discussion of “an eye for an eye.” The Gemara has already successfully proved that “an eye under an eye” means a monetary payment, not the literal removal of an eye.
Let us see what Rabbi Dostai ben Judah says. Rabbi Dostai ben Judah says that “an eye under an eye” means an actual eye. You might say that it means money, since we do not literally remove the eye. But consider the following problem: What if one person is very large and another person is very small? How could the Torah require an eye for an eye? One person may have a large eye and the other a small eye. If someone knocks out a small eye, how could we remove an equivalent eye from him? The two eyes are not necessarily comparable.
Perhaps, then, the Torah means that when the eyes are not comparable, we take money, but in every other case we remove an eye. However, that cannot be correct. There cannot be one law for one person and a different law for another person. The law must be equal for everyone. One person cannot pay with an eye while another person pays money. There must be one consistent law.
The Gemara asks: When you say that the eyes are not comparable because one may be large and the other small, why would that prevent us from removing the eye? Remove his eye just as his eye was removed. The size of the eye should not matter. The same question applies to a person who is very small and injures someone who is very large. How could we remove the eye of the smaller person if it would not be equivalent to the eye that he removed?
The answer is that the Torah says, “as he has done, so shall be done to him,” and the Torah also says, “as the injury he inflicted upon a person, so shall be inflicted upon him.” Just as, in the case of murder, the Torah does not require us to measure the size or physical characteristics of the victim, but simply says that one life is taken in exchange for another life, so too, in the case of an eye, we remove an eye in exchange for an eye. The matter has nothing to do with the size of the eye. Therefore, there is no proof from this problem that the payment must be monetary.
We now begin another challenge. It was taught in the name of Rabbi Shimon ben Yochai: Does “an eye under an eye” not mean money? You might say that it means money, but perhaps not. The same reasoning applies to a hand. The Torah says “hand under hand,” yet we do not say that if one person has a hand, we remove a hand, and if he does not have a hand, he pays money. That would create two different laws. The Torah says that the law must be uniform. The only way to have one equal law for everyone is to say that everyone pays money.
The Gemara asks: What is the difficulty? Perhaps there is one law. If the person has an eye or a hand, we remove it; if he does not have one, he is exempt. That would mean that the law is always an eye for an eye or a hand for a hand. When it is impossible to carry out that punishment, the law simply does not apply. It would not mean that one person pays with an eye and another person pays money.
The response is that this approach does not work. Consider the case of a person who is a tereifah—a person destined to die within twelve months—and who kills a healthy person. What do we do with him? He committed murder, but he cannot receive the death penalty. The witnesses who testify that he killed the victim cannot be punished as conspiring witnesses, because their testimony could not have resulted in the victim’s death. The victim was already destined to die within twelve months. The witnesses were trying to have a person killed who was, in any event, already considered a dead man for this purpose.
Similarly, if two witnesses testify that Reuven killed someone, but Reuven was a tereifah who was already destined to die, the witnesses cannot receive the punishment of conspiring witnesses. Their testimony could not have caused Reuven to die, since he was already destined to die. In such a case, the witnesses are exempt.
Thus, in certain cases involving murder, the punishment is not carried out when it is impossible to carry it out. The same should apply here. If the person has a hand, we remove his hand. If he does not have a hand, he is exempt. That would still be one law: hand for hand whenever possible. Likewise, if he has an eye, we remove his eye, and if he does not have an eye, he is exempt.
The Gemara rejects this logic. The verse says that just as an injury was inflicted upon a person, so shall an injury be inflicted upon him. The wording indicates that the injury must be something that can be transferred from one person to another. “Hand under hand” teaches that the payment must be something that can be given from hand to hand. An eye cannot be transferred from hand to hand, but money can. The payment therefore has to be monetary.
Rabbi Yishmael explains the matter from an extra expression in the verse. The Torah says, “If a person causes a blemish in his fellow, as he did, so shall it be done to him.” Why does the verse need to repeat this additional phrase? The repetition teaches that the payment is money. The Torah says, “as he gives a blemish to a person, so shall be given to him.” What can be given from one person to another? Money.
The verse also says, “life for life, eye for eye, tooth for tooth, hand for hand, foot for foot.” The payment must be something that can pass from hand to hand. That cannot refer to an actual eye, foot, or hand. It must refer to money.
The Gemara challenges this derivation. The expression “hand under hand” appears in the passage concerning conspiring witnesses. Perhaps the same principle should be applied to “foot under foot.” If “hand under hand” teaches money, why should “foot under foot” not mean that one person’s foot is removed in exchange for the other person’s foot?
The answer is that the verse concerning conspiring witnesses says, “You shall do to him as he plotted to do to his fellow.” That might suggest that the witnesses receive exactly the punishment they attempted to cause. However, the phrase “hand under hand” teaches that the punishment is not necessarily carried out literally. It teaches the method by which the law is applied: from hand to hand, through a monetary payment. The same does not necessarily follow from the phrase “foot under foot.”
Abaye offers another explanation. The verse says, “life for life, eye for eye,” but it does not say, “life and eye for an eye.” This teaches that there are circumstances in which one pays for an eye, but does not give both a life and an eye. If the Torah meant an actual eye, there could be a situation in which removing the eye would cause the person to die. The verse therefore says “eye for eye,” without adding “life and eye,” indicating that the obligation is a monetary payment rather than an act that might cause death.
The Gemara asks: Why can we not simply assess the person before removing his eye? If the court and the doctors determine that he can withstand the procedure without dying, then the court should remove the eye. If they determine that he cannot withstand it, then perhaps he should pay money.
One might answer that the court could assess the person, remove his eye, and if he happened to die, that would be an accident. The assessment was made in good faith. Why, then, is the possibility of death a proof that the payment must be monetary? The Torah could still mean an actual eye.
The Gemara brings another teaching. The verse teaches that when there is damage, one must pay for two elements: the damage itself and the pain and suffering. Even though the person pays for the damage, he must also pay for the pain caused when the damage was inflicted.
But if the Torah means that an actual hand is removed in exchange for a hand, why would there be a separate payment for pain? When the perpetrator’s hand is removed, he experiences the same pain that he caused. Why should he have to pay pain and suffering when he has already experienced that pain himself?
The Gemara answers that perhaps the Torah is referring to the difference between the pain experienced by the victim and the pain experienced by the perpetrator. One person may be very sensitive and suffer greatly, while another may be less sensitive and suffer less. The victim may have screamed and experienced intense pain, whereas the perpetrator may not experience the same degree of pain when his hand is removed. The payment could therefore compensate for the difference between the victim’s pain and the perpetrator’s pain.
The Gemara raises a similar possibility regarding medical expenses. Perhaps the victim recovered slowly, while the perpetrator recovered quickly. The payment for medical treatment would then cover the difference between the expenses of a slow recovery and those of a fast recovery. Thus, the obligation to pay medical costs would not necessarily prove that the hand itself is not removed.
Nevertheless, the conclusion is that the phrase “an eye for an eye” means money. The Gemara has brought several proofs: the comparison to a payment that can be transferred from hand to hand, the wording of the verse, and the need to pay for damage, pain, medical treatment, and related losses.
The Gemara then turns to another proof. The Torah says “an eye under an eye” in connection with a person who injures another person. Elsewhere, regarding an ox that damages an ox, the Torah says that the ox is sold and the payment is made from its value. There, it is obvious that the payment is monetary; no one removes one ox’s body part and gives it to the other. Since the same expression “under” is used in both cases, we can derive from the case of an ox that “eye under eye” also means money.
The Gemara asks whether this comparison is valid. Perhaps we should learn a case of damage from another case of damage—damage caused by a person from damage caused by an ox—rather than learn damage caused by a person from a case of death caused by a person. In the case of a person who kills another person, the verse says “life under life,” and there the result is an actual death. It would be preferable to learn from a case involving damage rather than from a case involving death.
The Gemara therefore searches for a case of a person damaging another person in which the Torah explicitly requires a monetary payment. The Torah says that if a man seduces or violates a young woman, he must pay the girl’s father fifty silver coins. The verse uses the expression “because he afflicted her,” and that payment is clearly monetary. This is a case of a person causing harm to another person, with the Torah explicitly requiring payment. From there we can learn that “an eye under an eye” also refers to money.
One teaching, however, maintains that “an eye under an eye” means an actual eye. This is the first opinion to state explicitly that the verse should be understood literally. All the earlier rabbis who proved that the payment is monetary understood the assessment differently. They did not assess the damaged person as though there were a market value for his eye. Rather, they understood the verse as requiring an assessment related to the perpetrator.
The teaching explains that we do not assess the value of the injured person with and without his eye. Instead, we assess the value of the person who caused the damage, with his eye and without his eye. The payment is determined by the difference between what the perpetrator would be worth with his eye and what he would be worth without it. In this way, the expression “his eye under his eye” refers to the eye of the person who caused the damage.
There is a story about a donkey that cut off the hand of a baby. The owner was told to pay the appropriate damages, including the other payments that apply to a person who causes injury. The response was that a donkey does not pay all five payments. Five payments apply specifically when a person causes the damage, not when an ox or donkey causes the damage. The owner of the animal was therefore told to pay the four payments that apply in this case.
He then asked: How should the damage be assessed? The only way to assess the damage is to determine how much the child would have been worth with his hand and how much he would be worth without his hand. He did not want to bring his child to the marketplace and have people assess him. He considered it humiliating and embarrassing for the family. He said that he would rather compensate the child from his own pocket than subject him to that embarrassment.
The response was that this decision would cause the child a financial loss. The money belongs to the child, and he is entitled to receive it. The parent cannot forgo the child’s payment merely because the assessment is embarrassing. The parent may personally compensate the child later, but that does not eliminate the child’s right to the payment.
There was another case involving an ox that chewed off the hand of a baby. The matter was brought before Rav, and he instructed them to make an assessment. They replied that the Babylonian courts do not collect payments of this type. The rule is that anything without a fixed amount cannot be collected by the courts in Babylonia.
If the Torah establishes a fixed payment—fifty silver coins, one hundred silver coins, or another clearly stated amount—then the court can collect that amount. But where an assessment is required, the Babylonian courts do not have the authority to impose the payment. The judges in Babylonia did not possess the same ordination as the judges in the Land of Israel. That authority existed in the Land of Israel.
Rav clarified that he was not necessarily instructing them to impose the payment. He meant that they should make an assessment in case the injured party had already seized money. If the injured party had taken money for himself, he would be allowed to retain only the amount to which he was entitled. The court therefore needed to know the amount of the assessment, even if it could not compel the payment.
The Gemara then states that damages involving an ox and a person, or a person and an ox, can be collected in Babylonia under certain circumstances. However, damages involving a person and a person cannot always be collected there.
The reason is that the Torah requires judges for these cases. The judges are referred to as divine authorities, and the Babylonian judges did not possess the original ordination required for every type of case. The question is why the courts in Babylonia can nevertheless adjudicate certain monetary claims.
Rashi explains that the term referring to judges appears in the passages dealing with both a person who injures another person and an ox that injures another person. If the same requirement applies to all these cases, why should the Babylonian courts be able to judge some of them but not others?
The answer is that in certain cases the Babylonian rabbis act as agents of the earlier judges in the Land of Israel. Their authority is not entirely their own; they are exercising authority that was granted to them on behalf of the earlier rabbinic courts. This is also why the courts in Babylonia can adjudicate claims involving admissions and loans. If a person brings witnesses who testify that someone owes him a fixed amount of money, the Babylonian court can collect that amount.
The Gemara challenges this explanation. If the Babylonian courts act as agents of the courts in the Land of Israel, why should that authority apply only to admissions and loans? It should apply to every case.
The answer is that the agency applies only to cases involving fixed monetary obligations. If a person says that another person owes him a million dollars, and witnesses establish the amount, the court knows exactly what sum is owed. Likewise, when witnesses testify that money was lent, the amount is fixed. In such cases, the Babylonian courts can act as agents.
Where the amount is not fixed and must be assessed, the court cannot impose the payment. The Gemara asks about damages caused by an animal. That amount also requires an assessment. The response is that an animal’s damage can be assessed through the marketplace. It is possible to determine what the animal or object was worth before and after the damage.
There are also cases involving fixed payments, such as the four and five payments required when a person steals an animal and then slaughters or sells it. Nevertheless, those cases are treated differently because they are considered penalties, and penalties are not imposed in Babylonia.
The Gemara then discusses whether the payment for embarrassment can be collected in Babylonia. The payment for embarrassment is not necessarily a loss that left the victim out of pocket. It is compensation for the humiliation that he experienced. Since it is not a direct monetary loss, perhaps it cannot be collected by Babylonian courts.
There is a case in which someone collected four hundred zuz for embarrassment in Babylonia. When another scholar heard about it, he objected: You are collecting a payment for embarrassment in Babylonia? Perhaps embarrassment is considered a penalty, and penalties are not imposed there.
The rule appears to require two conditions before the Babylonian courts can act on behalf of the earlier courts: the matter must be a common or recognized type of case, and it must involve an actual monetary loss rather than merely a penalty. Thus, a payment for embarrassment may be common, but it does not compensate for money that the victim lost. It compensates him for humiliation.
By contrast, when a person damages another person, there is an actual loss. The injured person’s value or ability has been reduced. Even if the case is not common, the damage is a monetary loss. Regarding embarrassment, however, even if such cases are common, there is no direct financial loss. Therefore, the Babylonian courts do not collect it.
Damages caused by an ox to another ox are common and involve a monetary loss, so they can be collected in Babylonia. But if an ox damages a person, we must examine the circumstances. If the animal was still considered tame, the owner pays only half the damage. Half-damage is treated as a penalty, and penalties are not collected in Babylonia.
If the animal was already considered warned or dangerous, however, the full damage is a monetary obligation, and it can be collected. The difficulty is that the Babylonian courts cannot necessarily establish the animal’s status as a dangerous animal without the authority of the courts in the Land of Israel.
One possibility is that the animal became dangerous through an act that was already sufficient to establish that status, such as repeatedly pushing or damaging in a way that makes the matter clear. In that case, the payment may be treated as an ordinary monetary obligation rather than as a penalty.
This leads to a question raised by the earlier commentators. If the authority of the Babylonian courts depends on their acting as agents of the courts in the Land of Israel, how do we accept converts today? How can a group of rabbis accept a convert when there is no longer an ordained court in the Land of Israel to grant them authority?
The answer is that the authority was granted by earlier generations. Before the original ordination disappeared, the earlier rabbis granted authority to future generations. The courts today operate with the understanding that they are acting on the authority of the earlier courts in the Land of Israel.
The same principle applies to the sanctification of the new month. Originally, establishing the new month required experts and a properly ordained court. After that authority ceased, the calendar was established through calculation. The explanation is that the earlier sages sanctified the months in advance until the arrival of the Messiah. Each month is therefore sanctified on the basis of the authority that the earlier sages established.
That is why, before announcing the new month, we acknowledge that our ability to establish the calendar comes from the earlier generations. We do not possess independent authority today. We are confirming and continuing what was established by the earlier sages.
The conclusion of this discussion is that “an eye under an eye” means money. It does not mean the literal removal of an eye. The proof may come from the comparison to the payment for seduction or violation, from the expression “as he gives,” from the requirement that the payment be transferable from hand to hand, or from the other derivations brought by the Gemara.
There is an additional dispute about whose eye is used for the assessment. One opinion understands the verse as referring to the eye of the person who caused the damage. Another opinion understands it as referring to the eye of the injured person. The assessment is made according to the opinion that the relevant eye is the eye of the person who caused the damage.
The next discussion requires one verse from the Torah. The verse says, “a burn under a burn, a wound under a wound, and a bruise under a bruise.” The order of the expressions is significant: burn, wound, and bruise.
Our Mishnah teaches that when there is pain without permanent damage, the person must pay for the pain. For example, if someone burns another person’s fingernail, there may be no permanent damage. The person’s value is not reduced because he has a fingernail or lacks that fingernail. Nevertheless, he experienced pain, and the person who caused it must pay for that pain.
The Gemara asks how we know that pain is paid even when there is no damage. One might have thought that pain is paid only when it accompanies permanent damage. If a person injures another and causes a financial loss, he pays for the loss and for the pain. But when there is no damage, perhaps there is no payment for pain. The Gemara seeks a proof that pain can be separated from damage.
The Gemara says that if there is pain without damage, the payment is still made. It then asks who taught this principle. Rav says that it is the opinion of Ben Azzai, while Rabbi maintains another interpretation.
Rabbi says that the word referring to a burn is understood in conjunction with the word referring to a bruise. Ben Azzai says that the word referring to a bruise is stated afterward in order to explain the first word. At first glance, these two teachings seem to dispute the meaning of the verse, but they cannot simply be arguing about the wording, because the verse explicitly places the terms in a particular order.
When the Torah first says “a burn,” one might understand it to mean a burn by itself, without permanent damage. The later word “bruise” comes to explain that the burn under discussion is a burn accompanied by a bruise or injury. According to Rabbi, pain is paid only when there is also damage.
Ben Azzai understands the verse differently. When the Torah says “a burn,” it includes every type of burn, whether or not it is accompanied by a bruise. The later mention of a bruise limits the interpretation in another way. Thus, Ben Azzai teaches that pain can be paid even where there is no permanent damage.
The Gemara notes a difficulty. The Mishnah is generally understood to follow Rabbi, who compiled it. If there is a choice between presenting the law according to Rabbi or according to Ben Azzai, it would make sense for the Mishnah to follow Rabbi rather than Ben Azzai.
The Gemara therefore reverses the interpretation. Perhaps Rabbi is the one who says that a burn can exist by itself, while Ben Azzai says that the burn must be accompanied by a bruise. The wording of the discussion can be understood in either direction, and the Gemara examines which version is more logical.
According to one version, when the Gemara says that the bruise is stated afterward, that is the conclusion: the burn can stand by itself, and pain is paid even without damage. According to another version, the first assumption was that the burn stands alone, but the final conclusion is that the later expression of a bruise teaches that the burn must be accompanied by damage.
The Gemara then suggests that everyone may agree that the word “burn” includes all types of burns, whether or not there is a bruise. The dispute concerns the function of the later word “bruise.” Rabbi says that it limits the earlier expression and teaches that the burn must be connected to a bruise. Ben Azzai says that it does not limit the first expression in that way.
According to Rabbi, the verse is written in the order of a general statement followed by a specific limitation. The word “burn” initially includes every type of burn, and “bruise” clarifies that the verse refers specifically to a burn accompanied by damage. According to Ben Azzai, the interrupted order of the verse does not allow us to limit “burn” in that way, so pain is payable even when there is no damage.
The Gemara asks what purpose the word “bruise” serves according to Ben Azzai if the word “burn” already includes all forms of pain. The answer is that “bruise” teaches an additional payment. The person must pay not only for the pain but also for the visible mark or lasting impression left by the injury.
Thus, the discussion distinguishes among several payments. There is payment for permanent damage, payment for pain, and payment for the mark or scar that remains. Even when the physical pain has passed, the person may have to live with the mark for the rest of his life. That lasting mark is another element for which payment may be required.