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Words that Hurt: Torah Laws of Onaas Devarim

 

Is the Offense Punishable?

We mentioned at the close of the introduction that monetary wrongs can be righted through payment, whereas onaas devarim cannot be repaired.

This distinction gives rise to an important halachic debate concerning the punishment for onaas devarim. The Maharam of Rotenberg (Prague, 785) writes that since the offense is a Torah prohibition, and because the wrong cannot be righted, a transgressor is liable for punishment by malkos (lashes). The Mordechai (Bava Metzia 306) likewise mentions that the offense is punishable by malkos.

The Beis Yosef (Choshen Mishpat 1) questions this assertion: How can the offense of causing emotional pain, which is perpetrated by words rather than actions, be punishable by Beis Din? Surely no such punishment is administered for offenses that involve no physical action? Indeed, we find in the Chinuch (338) that the punishment of lashes is not applicable because no action is involved. The Beis Yosef suggests that the Mordechai refers to rabbinic lashes (makas mardus), and not to a Torah-ordained punishment, but based on the wording of the Maharam this approach is somewhat strained.

A possible resolution of this difficulty is that the prohibition of onaas devarim is considered a branch of monetary onaah. Since the monetary offense does involve a concrete action, and would have been punishable by lashes had the money not been refundable, the offense of onaas devarim is likewise punishable. This follows the reasoning of the Maggid Mishneh (Sechirus 13:2), who suggests that a prohibition that could involve a physical action is always punishable by Beis Din, even when the actual offense was transgressed without an action.

The Chinuch, however, maintains that the prohibition of onaas devarim is distinct from the monetary counterpart. Following the Rambam (Negative Prohibition 251) he lists the prohibition as a separate Torah transgression. He, therefore, maintains that there is no punishment of lashes for the transgression of onaas devarim. Moreover, the Chinuch maintains that whenever a transgression was done without a physical action, it is not punishable by Beis Din even if could be could have been transgressed with a concrete action.

Special Cases of Onaas Devarim

Although the prohibition against onaas devarim generally applies to all Jews (see below for exceptions), the Gemara stresses that one must be particularly careful to avoid hurting those who are most vulnerable.

An everyday case is a person’s wife. The Gemara (Kesubos 62b) relates how Rav Rechumi used to spend the entire year together with his mentor, Rava, returning home only once a year, on the eve of Yom Kippur. One year, Rav Rechumi was late. Immersed in his studies, he failed to notice that the time for his yearly trip home had come.

His wife, who had been waiting close to a year for the visit, became worried. “Perhaps now he will come,” she thought to herself, “perhaps now.” Yet there was no sign. Finally, concerned and distressed, she shed a tear. As the tear rolled down her cheek, the roof on which Rav Rechumi was sitting collapsed, and he fell to a tragic death.

Recognizing her special sensitivity, the Gemara (Bava Metzia 62b) teaches that one must be especially particular concerning onaas devarim of one’s wife: “Forever, one should be careful concerning the onaah of one’s wife, for her tear is swift to come, and her grief is at hand.” This special sensitivity is noted by the Shulchan Aruch (228:3), and the Be’er Heitev (4) comments that Hashem sees her tears and exacts retribution.

Additional cases of special sensitivity are converts (228:2), orphans (until they are old enough to fend for themselves) and widows (until they remarry). The two latter groups are described by the Torah as being particularly sensitive to emotional hurt, and the Rambam (De’os 6:10; Mitzvah 256) mentions that one must take extra care concerning their onaah.

An exception to the prohibition is a Jew who does not fall under the category of amitecha (your fellow), which the Gemara (59a) interprets as meaning, “with you in Torah and Mitzvos.” The Rambam and the Shulchan Aruch do not mention this exception, but it is ruled by the Rema (228:1; see Semah 3). The Chafetz Chayim (4:7) also mentions that there is no prohibition concerning causing anguish to a rasha, though the Aruch Hashulchan (228:1) writes that this is only true if one’s intention in doing so is that he should repent.

With regard to non-observant Jews today, the Shevet Ha-Levi (vol. 5, 51 [mitzvos]) rules that one may not cause grief to a tinok shenishbah (a Jew who does not observe mitzvos because he lacks the proper education). According to the Chazon Ish (Yoreh De’ah 14:2) most secular Jews today fall under this category.

Retaliation

A fascinating question arises in cases of retaliation. If someone finds himself under physical assault, he may defend himself in kind, in spite of the general prohibition against hitting one’s fellow. Even where there is no danger to life, one is not obligated to allow the assailant to continue his assault, and may strike back to fend him off (Choshen Mishpat 422:13)

Does the same principle apply to verbal abuse? Based on the parallel concept of physical assault, it would certainly be permitted to hurl an epithet that will stop the assaulting party from further verbal abuse. Under most circumstances, however, returning an insult just makes matters worse. Is it then permitted to retaliate in kind, or is the principle of retaliation related specifically to physical self-defense (see Rosh, Bava Kama 3:13), and therefore generally inapplicable to cases of verbal assault?

We may find an answer to this question in the very halachah that discusses physical retaliation, where the Rema appears to equate verbal and physical abuse: “So too, in cases of insults and embarrassments, he who started must pay the fine.” Just as the person who initiated a physical fight is held responsible for the affair and therefore liable to pay damages, so too in cases of verbal damages, the initiator alone is liable to pay the fine (there is no monetary penalty for grief or distress caused; there is, however, a monetary fine for causing shame and embarrassment).

The fact that the initiator alone is held responsible, whereas the person who responded is exempt from all liability, seems to indicate that a person who responds in kind to verbal assault has committed no wrong.

Yet, the Raanach (no. 50) explains that retaliation does not incur a penalty only when it is executed in the heat of the moment. In cases of verbal damages, such as embarrassment and shame, one is only liable to pay damages for words spoken with full intent and awareness (Choshen Mishpat 421:1), and not when the insult emerged in the heat of the moment. A similar line of reasoning is found in the Yam Shel Shlomo (Bava Metzia 8:42).

Thus, although there is no liability for spontaneous verbal retaliation, the question remains whether it is permitted to utter a calm and collected insult at the offender. Based on the ruling of the Raanach, somebody who makes a wounding insult in a calm and composed state of mind is liable for damages – even if the insult comes in reaction to the one who started the exchange. It follows that this type of insult is not permitted.

“Somebody who Pains Himself”

In the context of this discussion it is important to note the somewhat cryptic statement made by the Rema (Choshen Mishpat 228:1): “It is permitted to cause distress to one who causes himself (atzmo) pain.” The source of the ruling is the Nimmukei Yosef (Bava Metzia 58) in the name of a Midrash, and it has caused much discussion and debate in the writings of later commentaries and authorities.

The Ir Shushan (ibid.), clearly unwilling to accept that the Torah prohibition of onaas devarim is waived for somebody who causes himself pain, explains the ruling as follows: The prohibition of onaas devarim applies specifically to somebody who is classified as amitecha, “with you in Torah and Mitzvos.” Somebody who does not possess fear of Heaven pains himself, and there is therefore no prohibition to cause him distress.

This interpretation appears to be somewhat strained, and the Semah (4) suggests an alternative: Someone who pains himself (a type of masochist) cannot be classed as a normal member of society, and he therefore leaves the group of amitecha, “your fellow.” Therefore, the prohibition does not apply to those who cause themselves grief. The Nesivos Ha-Mishpat (1) likewise quotes this rationale and halachic conclusion.

Yet, the Semah’s understanding is also somewhat surprising. We find no precedent for excluding someone who is peculiar from the category of amitecha; the only exclusion mentioned by the Gemara is someone who is distant from Torah and Mitzvos. Furthermore, the exclusion of someone who is strange (by virtue of his self-affliction) from the category of amitecha will have far reaching consequences in many other areas, such as the general obligation to judge him favorably. Such halachic ramifications are not mentioned by poskim.

Whose Pain Is It?

The Be’er Hagolah offers a third interpretation, suggesting that the word atzmo of the Nimmukei Yosef does not mean someone who causes himself distress, but rather somebody who pains another. The Rema and the Nimmukei Yosef thus mean to teach that one may return an insult for an insult: If someone causes you grief, there is no prohibition to cause him grief in return.

Although the Semah rejects this explanation, the Vilna Gaon upholds it, and adds an explanation based on a Gemara (Shabbos 40a): “One who transgresses a rabbinical decree, it is permitted to call him a transgressor.” The person in question may well suffer from this label, yet it is permitted to call him by the derogatory title. The Vilna Gaon mentions another Gemara (Megillah 25b): “One who has a bad name (there are substantiated bad rumors about him) – one may disgrace him with Gimel and Shin.”

The same is true of someone who causes another grief: Since he transgresses the prohibition of onaas devarim, it is permitted to cause him grief.

Citing the Yerei’im (180), the Chafetz Chaim (Be’er Mayim Chaim 1:31) concurs that this is the correct interpretation of the ruling given by the Nimmukei Yosef and the Rema. We thus learn that there is no prohibition of returning an insult for an insult. Just as we may give derogatory names to someone who is known to violate Torah laws, so one may call a person who insults others, by appropriate names.

If we, nonetheless, wish to fulfill the above ruling of the Raanach (i.e. that the person who retaliates is liable for the pain he causes), we would have to ensure that the retaliatory epithets will not cause actual pain and anguish. Although it is certainly a virtue to remain silent – in fact, the Gemara (Yoma 23a) writes that it is among the greatest virtues a person can have – one who retaliates has upon whom to rely.

Application of the Prohibition

Naturally, the prohibition against inflicting emotional pain upon a fellow Jew applies equally to men, women, and children.

In the case of children, parents must exercise special care, since it is sometimes necessary for a parent to chastise a child as part of his upbringing. When chastising one’s children, one must thus ensure that the underlying intentions are pure. Likewise, one must be wary of causing the children unnecessary pain(Chinuch, ibid.).

It is related that Chazon Ish once saw a father admonish his child over a possible muktzeh transgression on Shabbos, thereby causing the child anguish. The Chazon Ish noted that the child had possibly transgressed a rabbinic prohibition, but the father, for going over the top, had transgressed a Torah prohibition of onaas devarim.

What Constitutes Onaas Devarim?

In the current article we have discussed the laws of onaas devarim, and covered a number of important related questions. However, we have yet to discuss what precisely constitutes onaas devarim: What type of speech or deed enters the category?

Briefly, any form of speech or deed which embarrasses, offends, pains, aggrieves, shocks (in the painful sense of the word), or angers one’s fellow can be classified as onaas devarim. This emerges from the teachings of various authorities who mention these adjectives in defining the prohibition. Although the most commonly used description is ’embarrassment,’ Rashi (Bava Metzia 59) and others (see Chinuch 338 and Shaarei Teshuvah 2:24) use the term ‘tza’ar,’ while the Rambam (Negative Commandment 251) mentions ‘anger’ and ‘shock.’

Yet, there are many details concerning precisely which speech falls under the prohibited category, and which does not. Is it forbidden for a younger sister to get married before her older sister on account of the prohibition? When is it permitted to call others by nicknames? We will please G-d return to this topic at a future opportunity.

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