The Mishnah discusses how to calculate pain, or Tza'ar. It states that the evaluation is based on how much a person would be willing to endure that pain. The Gemara then delves into the intricacies of this calculation, especially in cases where the victim also suffered physical damage, or Nezek.
Consider a scenario where someone chops off another's hand. This involves both Nezek (the loss of the hand) and Tza'ar (the pain). The question arises: if compensation is paid for the hand, is the Tza'ar already included? If the hand is valued at a certain amount, and that amount is paid, why should additional compensation for Tza'ar be required? The Gemara initially suggests that the calculation for Tza'ar is "how much a person would be willing to take for their hand to be chopped off." However, this approach is problematic because such a calculation would encompass all five categories of damage: Nezek (damage), Ripuy (medical expenses), Shevet (loss of earning capacity), Boshet (embarrassment), and Tza'ar itself. The Mishnah seeks to define Tza'ar alone.
Furthermore, the Gemara raises an objection: "What about those who are crazy?" A person would not accept any amount of money to have their hand cut off. Such a price cannot be determined. Therefore, the proposed calculation for Tza'ar is not suitable.
The Gemara offers another interpretation: what if the hand is already severely injured, "dangling already," and effectively useless? In this case, there's no functional loss, so the payment would primarily be for the act of cutting it off. However, this still includes Boshet (embarrassment) from having the hand severed and discarded. We need a case where only Tza'ar is being calculated.
The Gemara then proposes a more refined scenario: imagine a king has decreed that a person's hand must be cut off. In this situation, the loss of the hand (Nezek) is a foregone conclusion, not caused by the individual who is now performing the act. The question then becomes: how much would the person be willing to receive to have their hand cut off with a sword (a more painful method) rather than with a pain-numbing drug (Sam)? This would isolate the payment for the pain itself. However, the Gemara again objects: "A person would not take anything to get paid." Who would choose a more painful method for money?
Finally, the Gemara presents the definitive answer, attributed to Abaye: the calculation is not "how much a person would be willing to take," but "how much a person would be willing to give." In the scenario where the king has decreed the hand be cut off, the person's hand is already forfeit. There is no Nezek from the one performing the cutting. The question is, how much would the victim be willing to pay to have their hand removed painlessly (with a Sam) rather than painfully (with a sword)? This amount, which the victim would pay to mitigate their pain, is the measure of Tza'ar that the damager must pay to the victim. This interpretation re-reads the Mishnah's word "Litol" (to take) as referring to what the victim would "give" to avoid pain, which is then taken from the damager.
The discussion then shifts to Ripuy, medical expenses. The Gemara states that if someone causes a wound, they are obligated to pay for the victim's medical bills. This includes situations where boils grow near the wound as a result of the injury, or if the wound heals and then relapses. The damager must pay for both the medical treatment and the victim's lost wages (Shevet) due to being out of work.
A key point of contention arises regarding secondary complications. If boils grow not directly on the wound but as a result of it, and they cause the victim to be out of work, are both Ripuy and Shevet still owed? The Tanna Kamma (first opinion) holds that wherever Ripuy is owed, Shevet is also owed. They are linked. Rabbi Yehudah, however, distinguishes: even if the boils grew as a result of the injury, one must pay for Ripuy, but not necessarily for Shevet for the lost work time. His view is more lenient regarding Shevet, limiting it to the actual wound itself. A third opinion, that of the Chachamim (sages), states that if there is no obligation for Shevet, there is also no obligation for Ripuy, making them the most lenient.
The Gemara then explores the root of this disagreement. The question is whether a victim is permitted by Jewish law to bandage their wound. Rashi explains that boils might grow because the wound was wrapped, creating warmth. The Tanna Kamma holds that one is permitted to wrap the wound, and therefore, if boils result, both Ripuy and Shevet are owed. Rabbi Yehudah, however, believes that one is not permitted to put on an excessive bandage. Yet, due to the double language in the Torah ("Rapoi Yirapeh" - "he shall surely heal"), he maintains that Ripuy must be paid even if the victim shouldn't have bandaged excessively, but Shevet is not. The Chachamim (third opinion) argue that if Shevet is not paid, neither is Ripuy. Their interpretation of "Rapoi Yirapeh" is that it teaches that a doctor is permitted to heal, rather than implying a broader obligation for damages.
Rabbah challenges Rabbi Yehudah's view: if one is not allowed to put on the bandage, why should the damager pay for the resulting boils? It would be the victim's fault. Rabbah suggests that everyone agrees a regular covering is permissible. The dispute is specifically about "extra insulation" (Eged Yeterah). Rabbi Yehudah believes that while regular covering is allowed, extra wrapping is not. Still, because of the double language "Rapoi Yirapeh," Ripuy is paid, but Shevet is not, because the word "Rak" (only) in relation to Shevet comes to exclude certain cases. The Chachamim interpret "Rak" differently, saying it excludes cases where the damage is not a direct result of the initial wound. The third opinion (the second group of Chachamim) holds that if Shevet is not paid, Ripuy is also not paid, and they interpret "Rapoi Yirapeh" as teaching the permissibility of seeking medical help.
The Gemara then clarifies the scope of "Rapoi Yirapeh." It teaches not only that doctors are permitted to heal but also that one must pay for secondary complications arising from the wound. Furthermore, it implies that even if one has paid for the primary damage (Nezek), they still must pay for Ripuy. The phrase "Rak Shivto" (only his idleness) is understood by some to exclude cases where the victim failed to follow doctor's orders, for example, by eating honey, which is bad for a wound. In such a case, the damager would not be liable for the resulting complications.
The Gemara then addresses practical scenarios regarding Ripuy. If the damager offers to heal the victim themselves, the victim can refuse, saying, "You are like a lion in ambush," meaning they don't trust the one who caused the harm. If the damager offers a free doctor, the victim can again refuse, arguing that "a free doctor is worth what you pay," implying a lack of responsibility. If the damager offers a doctor from a distant place, the victim can object that such a doctor might be reckless, not caring for their reputation in a foreign place. If the victim asks for a lump sum to manage their own medical care, the damager can refuse, fearing the victim might neglect their health, leading to further complications and damaging the damager's reputation.
A Baraita is then introduced, stating that all four payments—Tza'ar, Shevet, Ripuy, and Boshet—are paid even when Nezek has already been paid. This addresses the question of whether paying for Nezek covers everything. The Torah's specific wording for each category indicates that these payments are distinct. For example, the double language of "Rapoi Yirapeh" teaches that one pays for Ripuy even when Nezek is paid, and also for complications beyond the initial wound. This implies that Tza'ar can exist without Nezek, and Ripuy can exist without Nezek.
The Gemara provides examples of these distinctions:
- Tza'ar without Nezek: Burning someone's fingernail. The nail will heal, so there's no permanent Nezek, but there is pain.
- Ripuy without Nezek: Giving someone who is already sick overly strong medicine that causes skin discoloration. The initial illness was not caused by the damager, but the incorrect medicine requires further treatment.
- Shevet without Nezek: Grabbing someone and locking them in a room, preventing them from working. No physical damage is done, but their earning capacity is lost. (It must be an active grabbing, not just locking a door on someone already inside, which would be an indirect cause.)
- Boshet without Nezek: Spitting in someone's face. This causes embarrassment but no physical damage.
Regarding Shevet, the Gemara explains that the victim's lost earning capacity is evaluated based on their ability to perform a menial job, such as "a watchman of cucumbers," which does not require the use of the injured limb. This is because the compensation for the loss of the limb itself (e.g., a hand) is already covered under Nezek. So, Shevet covers what the person could still do during their recovery, even if it's a lower-paying job.
The Gemara further specifies: if a hand is cut off, the victim can still be a "watchman of cucumbers." If a leg is cut off, they can be a "door watchman." If an eye is blinded, they can "grind on a millstone." However, if someone is deafened, they are considered unfit for anything, and therefore, the entire value of the person is paid under Nezek, and no separate Shevet payment is made. This is because the Nezek payment covers the complete loss of the person's earning potential, effectively making them "owned" by the damager in terms of compensation.
The Gemara then considers a complex case: what if a person is repeatedly injured before any assessment is made? For example, their hand is cut off, then their leg is broken, then an eye is blinded, and finally, they are deafened. If no evaluation was made after each injury, the question is whether all damages are combined into one major calculation, or if each injury still incurs separate payments for Tza'ar and Boshet. The Gemara concludes that even if the final outcome is full payment for the person (as if they were deafened), Tza'ar and Boshet are paid for each individual act of damage, as each act causes new pain and embarrassment. The Gemara leaves open the question of whether this applies if assessments were made after each injury but payment was not yet rendered, or if it's all considered one payment because the final payment for the whole person covers it all. The Gemara concludes with this unresolved question.