Talmud - Bava Kamma 84a בבא קמא פ״ד א׳

in the case of a small person who killed a large person, or a large person who killed a small person, how do we kill the murderer? If one suggests that in such a case a monetary penalty will be imposed, the Torah stated: “You shall have one manner of law” (Leviticus 24:22), teaching that the law shall be equal for all of you, so the punishment must be the same for all murderers. Rather, explain that since the murderer took the life of the victim, the Merciful One states that the court should likewise take the life from him. So too, since the one who caused the injury took the sight from the eye of the injured party, the Merciful One states that the court should likewise take the sight from his eye. Therefore, the Gemara does not accept the derivation of Rabbi Dostai ben Yehuda, in accordance with the objection of the Sages.

The Gemara presents another derivation: It is taught in another baraita that Rabbi Shimon ben Yoḥai says: “An eye for an eye” (Leviticus 24:20), is referring to monetary restitution. Do you say that this is referring to monetary restitution, or is it only teaching that the one who caused the injury must lose an actual eye? There may be a case where there was a blind person and he blinded another, or there was one with a severed limb and he severed the limb of another, or there was a lame person and he caused another to be lame. In this case, how can I fulfill “an eye for an eye” literally, when he is already lacking the limb that must be injured? If one will suggest that in that case, a monetary penalty will be imposed, that can be refuted: But the Torah stated: “You shall have one manner of law” (Leviticus 24:22), which teaches that the law shall be equal for all of you.

The Sages object to this derivation and say: And what is the difficulty? Perhaps in a case where it is possible to render the guilty party liable according to the punishment listed in the Torah, it is possible and the court does so; but in a case where it is not possible to enact such a punishment, it is not possible, and we exempt him. As if you do not say so, that punishing one and exempting another is not counter to the principle of: “One manner of law,” then by the same logic, in the case of one who has a wound that will cause him to die within twelve months [tereifa] and who killed a healthy person, what do we do to him?

Rather, one must say that in a case where it is possible to render the guilty party liable according to the punishment listed in the Torah, it is possible and the court does so; but in a case where it is not possible to do so, it is not possible, and we exempt him. Therefore, the Gemara does not accept the derivation of Rabbi Shimon ben Yoḥai, in accordance with the objection of the Sages.

The Gemara presents another derivation: The school of Rabbi Yishmael taught that the verse states: “A fracture for a fracture, an eye for an eye, a tooth for a tooth; as he has given a blemish to a person, so shall it be given unto him” (Leviticus 24:20), and giving can refer only to a payment of money. The Gemara challenges: But if that is so, then when the same verse states: “As he has given [yitten] a blemish to a person,” does this word, “yitten,” also refer to money? The word “yitten” means that he caused an actual injury, even though it employs a term whose literal meaning is give.

The Sages say in response: The rabbis of the school of Rabbi Yishmael are interpreting a superfluous verse. Now, it is written: “And if a man gives a blemish to his neighbor; as he has done, so shall it be done to him” (Leviticus 24:19), so why do I need the verse: “So shall it be given unto him” (Leviticus 24:20)? Learn from the repetition that the verse is referring to monetary restitution. The Gemara asks: But if this is so, why do I need the verse: “As he has given [yitten] a blemish to a person” (Leviticus 24:20)? What does the usage of the term “yitten” teach? The Gemara answers: In fact, it does not teach anything, but rather, since the Merciful One needs to write at the end of that verse: “So shall it be given unto him,” where the employment of a term of giving is accurate, the Merciful One also wrote earlier in the verse: “As he has given [yitten] a blemish to a person.”

The Gemara presents another derivation: The school of Rabbi Ḥiyya taught that the verse states with regard to conspiring witnesses: “And your eye shall not pity; a life for a life, an eye for an eye, a tooth for a tooth, a hand for a hand, a foot for a foot” (Deuteronomy 19:21). This teaches that the witnesses pay compensation with that which is given from hand to hand. And what type of compensation is that? Monetary restitution. The Gemara challenges: But if that is so, is the phrase: “A foot for a foot” (Deuteronomy 19:21), also like that, i.e., is it teaching that the witnesses pay compensation with an item passed from foot to foot?

The Sages say: The rabbis of the school of Rabbi Ḥiyya are interpreting a superfluous phrase in the verse. Now, it is written: “And you shall do to him as he purposed to do to his brother” (Deuteronomy 19:19). If it enters your mind to say that the verse means this literally, why do I need the Torah to specify: “A hand for a hand” (Deuteronomy 19:21)? The punishment will be whatever he purported to do to his brother. Learn from the extra phrase that the punishment is monetary restitution. If so, why do I need the phrase: “A foot for a foot” (Deuteronomy 19:21)? Since it is written: “A hand for a hand,” the Merciful One also wrote in the Torah: “A foot for a foot.”

The Gemara presents another derivation: Abaye says that this principle is derived from that which was taught by the school of Ḥizkiyya, as the school of Ḥizkiyya taught that the Torah states: “An eye for an eye” (Exodus 21:24), and: “A life for a life” (Exodus 21:23), but not an eye and a life for an eye. And if it enters your mind to say that the verse means this literally, there could be times when you find a case where both an eye and a life are taken for an eye, i.e., when the one who caused the damage is so weak that as the court blinds his eye, his soul departs from his body.

The Gemara objects: And what is the difficulty? Perhaps we evaluate the physical condition of the guilty party; if he can withstand this punishment, then we do blind his eye; if he cannot withstand this punishment, then we do not do so and he goes unpunished. And if we evaluate him and determine that he can withstand this punishment, and we do so to him and blind his eye, and yet his soul departs his body as a result, if he dies, he will die. Didn’t we learn in a mishna with regard to lashes (Makkot 22b): If one was sentenced to be flogged, and the court evaluated him and determined that he could withstand a certain number of lashes, and he dies at the hand of the officer tasked with administering the lashes, then the officer is exempt, even though the one who was flogged was not sentenced to the death penalty? Therefore, the Gemara does not accept the derivation of Abaye.

The Gemara presents another derivation: Rav Zevid said in the name of Rabba that the verse states: “A wound for a wound” (Exodus 21:25), to teach that one who injures another must pay compensation for pain, even in a case where he pays compensation for damage. And if it enters your mind that the phrase: “An eye for an eye” (Exodus 21:24), refers to the removal of an actual eye from the one who injured the other, then just as it is so that the injured party has pain from the loss of his eye, the one who caused him injury also has pain when the court removes his eye; why then does the Torah require that he pay compensation for pain as well?

The Gemara objects: And what is the difficulty? Perhaps there is a person who is delicate, so he has more pain, and there is a person who is not delicate, so he does not have the same amount of pain. Therefore, even if the court actually removes an eye for an eye, the one who caused the injury might still need to compensate the injured party for pain. What is the practical difference when the Torah states: “A wound for a wound” (Exodus 21:25)? It renders the one who caused the injury liable to give the injured party compensation for the difference between them in pain tolerance. Therefore, the Gemara does not accept the derivation of Rav Zevid.

The Gemara presents another derivation: Rav Pappa said in the name of Rava that concerning one who was injured by another, who must pay for damage, the verse states: “If he rises again, and walks outside upon his staff, then he that struck him shall be absolved; only he shall pay for his loss of livelihood, and shall cause him to be thoroughly healed” (Exodus 21:19), which teaches that one who injures another must pay compensation for medical costs even in a case where he pays compensation for damage. And if it enters your mind that the phrase: “An eye for an eye” (Exodus 21:24), is referring to an actual eye, then just as it is so that the injured party needs healing, the one who caused him the injury also needs healing after the court removes his eye; why, then, does the Torah require that he pay compensation for medical costs as well?

The Gemara objects: What is the difficulty? Perhaps there is one whose flesh heals quickly, and there is another whose flesh does not heal quickly. Therefore, even if the court actually removes an eye for an eye, the one who caused the injury might still need to compensate the injured party for medical costs. What is the practical difference when the Torah states: “And shall cause him to be thoroughly healed” (Exodus 21:19)? It renders the one who caused the injury liable to give the injured party compensation for the difference between their respective medical costs.

The Gemara presents another derivation: Rav Ashi said that the fact that one who injures another pays monetary restitution is derived from a verbal analogy of the word “for,” as written with regard to injuries caused to people from the word “for,” as written with regard to an ox that gored another ox. It is written here: “An eye for an eye” (Exodus 21:24), and it is written there, with regard to a forewarned ox that gored the ox of another: “He shall pay an ox for an ox” (Exodus 21:36). Just as there, the verse does not mean that the owner pays compensation with an actual ox, but rather pays monetary restitution, so too here, one who injures another pays monetary restitution.

The Gemara asks: What did you see that led you to derive the halakha from a verbal analogy of the word “for” as stated in the verse with regard to injuries to a person from the word “for” as stated with regard to an ox? Let us learn a verbal analogy of the word “for” as stated in the verse with regard to injuries to a person from the word “for” as stated with regard to a person, as it is written about one who kills another: “You shall give a life for a life” (Exodus 21:23). Just as there, the court punishes the guilty party by taking his actual life, so too here, why not say that the court should take his actual eye?

The Sages say in response: The halakha concerning damages is derived from a verse concerning damages, and the halakha concerning damages is not derived from a verse concerning death. The Gemara objects: On the contrary, say that the halakha concerning a person is derived from a verse concerning a person, and the halakha concerning a person is not derived from a verse concerning animals.

Rather, Rav Ashi retracted his original statement and said a different derivation: The halakha is derived from a verbal analogy of the word “for” as written with regard to injuries from the word “for” as written with regard to a man who rapes a woman, who must pay monetary compensation. The verse states: “Then the man that lay with her shall give to the girl’s father fifty shekels of silver, and she shall be his wife, for he has afflicted her; he may not send her away all his days” (Deuteronomy 22:29). Based on this verbal analogy, the halakha concerning a person is derived from a verse concerning a person, and the halakha concerning damages is derived from a verse concerning damages.

§ It is taught in a baraita that Rabbi Eliezer says: The verse that states: “An eye for an eye” (Exodus 21:24), is referring to an actual eye. The Gemara asks: Can it enter your mind that the verse is referring to an actual eye? Doesn’t Rabbi Eliezer understand the verse like all these tanna’im, who explained that this verse is referring to monetary payment?

Rabba said in response: Rabbi Eliezer means to say that the court does not appraise the injured party as a slave to assess the compensation for the injury. Abaye said to Rabba: Rather, like whom does the court appraise the injured party? If you say that the court appraises him like a freeman, does a freeman have monetary value? Rather, Rav Ashi said: Rabbi Eliezer means to say that the court does not appraise the injured party as if he were going to be sold as a slave, but rather, they appraise the one who caused him damage. The court appraises how much the latter’s value would be reduced were he to sustain the same injury he caused to the injured party, and he pays this amount as indemnity.

§ The Gemara relates: There was a certain donkey that severed the hand of a child. The case came before Rav Pappa bar Shmuel. He said to the officers of the court: Go appraise the four types of indemnity for the child. Rava said to him: But didn’t we learn in the mishna that there are five types of indemnity? Rav Pappa bar Shmuel said to him: I was saying to include the indemnities the responsible party is liable to pay other than damage. Abaye said to him: But was this not a donkey that caused this injury, and the owner of a donkey that causes injury pays only for the damage? Rav Pappa bar Shmuel said to the officers of the court: Go appraise for the child the value of his damage. They said to him: But doesn’t the child need to be appraised as a slave? He said to them: Go appraise him as a slave.

The father of the child said to them: I do not want my child to be appraised as a slave, because this matter would demean him. They said to the father: But you are acting to the detriment of the child, as he will not receive compensation for his injury. He said to them: When he matures, I will appease him with my own money, rather than see him demeaned now.

The Gemara relates another incident: There was a certain ox that chewed [da’alas] the hand of a child, injuring him. The case came before Rava. He said to the officers of the court: Go appraise him as a slave. They said to Rava: But wasn’t it you, Master, who said: With regard to anyone who is appraised as a slave in order to determine the amount of a monetary penalty, that penalty is not collected by courts in Babylonia? Rava said to them: It is not necessary to appraise his value in order to force the guilty party to pay restitution, but it is nevertheless necessary to determine his value. This is because if the injured party seizes property from the one who caused him injury, and that property is equal in value to what the payment should be, the court will not compel him to return it.

The Gemara notes: Rava conforms to his standard line of reasoning, as Rava says: Compensation for damage to an ox caused by an ox and for damage to an ox caused by a person is collected by courts in Babylonia, but compensation for damage to a person caused by a person and for damage to a person caused by an ox is not collected by courts in Babylonia.

The Gemara clarifies: What is different about compensation for damage to a person caused by a person and for damage to a person caused by an ox, that it is not collected in Babylonia? If you say that we require ordained judges to collect damages, and there are not any ordained judges in Babylonia, then so too, in a case of damage caused by an ox to an ox, and damage caused by a person to an ox,

Traduction : The William Davidson digital edition of the Koren Noé Talmud, with commentary by Rabbi Adin Even-Israel Steinsaltz.

BavaKamma 84a examines whether "an eye for an eye" mandates monetary compensation, debating equal justice when injuries can't be physically replicated.