Talmud - Bava Kamma 90b בבא קמא צ׳ ב׳

This is the principle of assessing payment for humiliation caused to another: It is all evaluated in accordance with the honor of the one who was humiliated, as the Gemara will explain. Rabbi Akiva said: Even with regard to the poor among the Jewish people, they are viewed as though they were freemen who lost their property and were impoverished. And their humiliation is calculated according to this status, as they are the children of Abraham, Isaac, and Jacob, and are all of prominent lineage.

The mishna relates: And an incident occurred involving one who uncovered the head of a woman in the marketplace, and the woman came before Rabbi Akiva to request that he render the assailant liable to pay for the humiliation that she suffered, and Rabbi Akiva rendered the assailant liable to give her four hundred dinars. The man said to Rabbi Akiva: My teacher, give me time to pay the penalty, and Rabbi Akiva gave him time.

The man then waited for her until she was standing by the opening of her courtyard, and he broke a jug in front of her, and there was the value of about an issar of oil inside the jug. The woman then exposed her own head and she was wetting [metapaḥat] her hand in the oil, and placing her hand on her head to make use of the oil.

The man set up witnesses to observe her actions, and he came before Rabbi Akiva, and he said to him: Will I give four hundred dinars to this woman for having uncovered her head? By uncovering her head for a minimal benefit, she has demonstrated that this does not cause her humiliation.

Rabbi Akiva said to him: You did not say anything, i.e., this claim will not exempt you. One who injures himself, although it is not permitted for him to do so, is nevertheless exempt from any sort of penalty, but others who injured him are liable to pay him. In this case as well, the man was liable to compensate the woman for shaming her, despite the fact that she did the same to herself. Similarly, one who cuts down his own saplings, although it is not permitted for him to do so, as this violates the prohibition of: “You shall not destroy” (see Deuteronomy 20:19), is exempt from any penalty, but others who cut down his saplings are liable to pay him.

GEMARA: The mishna teaches that according to the opinion of Rabbi Yosei HaGelili, one who strikes another must pay him one hundred dinars. The Gemara clarifies this opinion. A dilemma was raised before the Sages: Did we learn in the mishna that he must pay one hundred dinars of Tyrian coinage, or did we learn in the mishna that he must pay one hundred dinars of state coinage, which is worth one-eighth of Tyrian coinage, i.e., twelve and a half dinars of Tyrian coinage?

The Gemara answers: Come and hear a proof: It happened that there was a certain man who struck another man, and the latter came before Rabbi Yehuda Nesia to request an assessment for the humiliation he suffered. Rabbi Yehuda Nesia said to the assailant: This is I, and this is Rabbi Yosei HaGelili. Give him one hundred dinars of Tyrian coinage. The Gemara suggests: Conclude from the incident that we learned in the mishna he must pay one hundred dinars of Tyrian coinage. The Gemara affirms: Conclude from it that it is so.

The Gemara clarifies: What did Rabbi Yehuda Nesia mean when he stated: This is I, and this is Rabbi Yosei HaGelili? If we say that this is what Rabbi Yehuda Nesia said to the assailant: This is I, who saw you strike the man, and this is the opinion of Rabbi Yosei HaGelili, who says that the penalty for this act is one hundred dinars of Tyrian coinage; therefore, go and give him one hundred dinars of Tyrian coinage, is this to say that a witness can become a judge, i.e., that one who witnessed an event can himself serve as a judge concerning the matter, and consequently Rabbi Yehuda Nesia was able to act as both witness and judge in the same case?

But isn’t it taught in a baraita that if there was a Sanhedrin that saw one kill another person, some of them have become witnesses and testify before the others, and some of them have become judges to issue a verdict; this is the statement of Rabbi Tarfon. Rabbi Akiva says: They are all witnesses to the act, and a witness cannot become a judge.

The Gemara infers from this baraita that even Rabbi Tarfon says his opinion only in a case where some of the members of the Sanhedrin have become witnesses and some of them have become judges, but he did not say that a witness becomes a judge without anyone else testifying. All the more so according to the opinion of Rabbi Akiva would it not be permitted for Rabbi Yehuda Nesia to act as a judge as well as serving as a witness.

The Gemara rejects this: One could say that when that baraita is taught, it is taught in a case where the Sanhedrin saw the murder at night, at which time it is not permitted for them to practice judgment, since cases of capital law may be judged only during the daytime. They were therefore not functioning as judges at that time. On the following day, testimony must be heard from some, now acting as witnesses, in front of the others, now acting as judges. By contrast, in the case of Rabbi Yehuda Nesia, he was able to serve as both the witness and the judge, as he witnessed the event while functioning as a judge.

The Gemara offers an alternative explanation: And if you wish, say instead that Rabbi Yehuda Nesia did not witness the incident, and this is what he said to the assailant: This is I, that I hold in accordance with the opinion of Rabbi Yosei HaGelili, who says that one hundred dinars of Tyrian coinage must be paid; and these are witnesses who testify concerning you that you struck the other. Therefore, go and give him one hundred dinars of Tyrian coinage.

§ The Gemara discusses the previously mentioned opinion of Rabbi Akiva: But does Rabbi Akiva hold that a witness cannot become a judge?

But isn’t it taught in a baraita (Tosefta, Sanhedrin 12:3) with regard to what is stated in the Torah concerning injuries: “And if men contend, and one smite the other with a stone, or with his fist” (Exodus 21:18), that Shimon HaTimni says: Just as a fist is unique in that it is submitted to the assembly of judges to assess its ability to injure and to the witnesses who attest that it was the fist used to strike, as a fist remains attached to the assailant, so too, a ruling can be issued in the case of any item that is submitted to the assembly of judges to assess its ability to injure and to the witnesses who attest that this was the item used to strike? This serves to exclude a case where the stone that injured left the possession of the witnesses and is not available to be inspected by the court to assess if it is capable of causing the purported injury.

Rabbi Akiva said to him: But is it the case that in all incidents of injury the assailant struck him in the presence of the court, so that they know exactly how hard he struck him and on what part of the body he struck him, e.g., if he struck him on his thigh or if he struck him on the lobe of his heart? Rather, the court relies on witnesses to testify about the injury. Therefore, the witnesses should be able to testify about the item used as well.

And furthermore, if there was one who pushed another from the top of the roof or from the top of a building, and the one who was pushed died as a result of the fall, do the members of the court go to the building to inspect how high it is, or does the building go to the court? Obviously neither, and the court relies upon the testimony of witnesses who state how tall the building is. And furthermore, if the building collapsed, must the court rebuild it in order to assess its height? The witnesses should then be able to testify about the item used as well.

Rather, Rabbi Akiva interprets the verse differently: Just as a fist is unique in that it is submitted to the witnesses for them to testify about it, so too, a ruling can be issued in the case of any item that is submitted to the witnesses to testify about, despite the item’s not being available for the court to assess.

This serves to exclude a case where the stone that injured left the possession of the assailant and cannot be found, and even the witnesses were unable to see it. In such a case the assailant is exempt from payment, since even the witnesses cannot testify about whether the stone was capable of inflicting the purported injuries.

The Gemara states its question: In any event, it teaches that Rabbi Akiva said to Shimon HaTimni: Are all cases of injury such that the assailant struck him in the presence of the court so that they know exactly how hard he struck him? It can be inferred from this that if he did in fact strike him in front of them, Rabbi Akiva would agree that a witness can become a judge. This contradicts the opinion of Rabbi Akiva in the baraita, that a witness cannot become a judge.

The Gemara answers that there is no proof as to the opinion of Rabbi Akiva, since it may be that he stated his refutation in accordance with the statement of Shimon HaTimni, but he himself does not hold accordingly. Perhaps Rabbi Akiva himself holds that if the court had witnessed the act, they would not be able to render judgment concerning it.

The Gemara quotes a related halakha. The Sages taught: In the case of an innocuous ox that killed a person and subsequently went and caused damage, the court judges it as a case of capital law and the ox is killed, and the court does not judge it as a case of monetary law, despite the damage that it caused.

By contrast, in the case of a forewarned ox that killed a person and subsequently went and caused damage, the court judges it as a case of monetary law, and the owner is liable to pay for the damage it caused, and then the court goes back and judges it again as a case of capital law, and the ox is killed. But if the court proceeded and judged it first as a case of capital law, the court does not go back and judge it again as a case of monetary law, since it has already been sentenced to be killed.

The Gemara asks: And if they proceeded and judged it first as a case of capital law, what of it? Let them go back and judge it again also as a case of monetary law.

Rava said: I found the Sages of the school of Rav who were sitting and saying to explain this: In accordance with whose opinion is this? It is in accordance with the opinion of Rabbi Shimon HaTimni, who says that just as a fist is unique in that it is submitted to the assembly of judges to assess its ability to injure and to the witnesses to attest that this was the fist used to strike, so too, a ruling can be issued in the case of any item that is submitted to the assembly of judges to assess its ability to injure and to the witnesses to attest that this was the item used to strike.

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

Bava Kamma 90b examines how humiliation payments are assessed based on personal dignity, illustrated by Rabbi Akiva's ruling on a public shaming case.