Parashas Ki Tavo includes the instruction to hold, upon entry into the Holy Land, a public ceremony of Covenant, in which the People of Israel declared its allegiance to the word of Hashem and the keeping of His mitzvos. Included also is the acceptance of the eleven arurim (curses).
The common denominator of the listed prohibitions is the concealed nature of the acts involved (see Rashbam, Devarim 27:15; Ibn Ezra 27:14). The final declaration is also the most general: “Cursed is he who shall not uphold the words of this Torah to perform them – and all the nation shall answer: Amen” (Devarim 27:26).
The performance of the ceremony reflects the recognition that a law alone is at times inadequate to prevent transgression, and there is a need for an additional social agreement that promises an effective upkeep of those principles that stand at the foundation of a Torah society. In the present article we will discuss one of the curses mentioned: “Cursed is he who smites his neighbor in secret” (Devarim 27:24).
The generally accepted interpretation of the verse is as a reference to somebody who smites his fellow by means of his tongue – in secret or concealment – by spreading malicious rumors or gossip against him (This is how Rashi understands the verse, based on the Targum.). However, the simple meaning of the verse is a physical attack that takes place away from the public eye, so that the assaulter cannot be brought to justice for want of witnesses (see Meshech Chochmah, among other commentaries).
In a previous article we have already had occasion to discuss the laws of physical assault; in the present article we will focus on the financial implications of a physical attack: By which punishment is the offender punishable? Which punishment is meted out by Heaven? Does a victim of physical assault have the right to request compensation by means of the country’s non-Jewish courts?
The Torah Prohibition
The Torah forbids an agent of Beis Din to smite someone who has been found liable to a beating more times than the required number of lashes. For certain transgressions, the Torah delineates a punishment of forty lashes (this is interpreted by the Sages as meaning thirty-nine), adding that it is forbidden to add an extra blow: “Forty stripes may be given him, but not more, lest, if one should go on to beat him with more stripes than these, your brother will be degraded in your sight” (Devarim 25:3).
The Gemara (Makkos 23a) cites a baraisa that derives a general prohibition on hitting others. This prohibition is ruled by the Rambam (Chovel 5:1): “It is forbidden for a person to cause injury, both to himself and to others. Furthermore, even somebody who hits a law-abiding individual among Israel, whether a minor or an adult, whether man or woman, by way of quarrel – transgresses a negative commandment.”
The same halachah is ruled by the Tur and by the Shulchan Aruch (Choshen Mishpat 420:1). Because the aggressor transgresses a negative commandment, it follows that he is disqualified from edus (giving testimony; see Choshen Mishpat 34).
Punishment for Striking
Elsewhere, the Rambam (Sanhedrin 16:12) writes that although smiting another involves a Torah prohibition, the guilty party is not liable for punishment by lashes.
The reason for this is that under most circumstances, striking another will obligate the hitter to pay compensation to the victim. After a financial liability, no additional punishment is administered. However, where the offender is exempt from financial liability, he indeed receives the punishment of lashes, as the Shulchan Aruch rules (Choshen Mishpat 420:2): “If he smote him with a strike whose value is less than a perutah – he is smitten.”
We should note that the exemption (in most circumstances) from punishment does not by any means detract from the severity of the prohibition. This severity is implied by the citation of the Gemara (Sanhedrin 58b) from Rabbi Chanina, whereby “somebody who slaps his fellow Jew’s face is considered as though he slaps the face of the Shechinah.”
Indeed, the Gemara mentions a case in which Rav Huna cut off the hand of a person who was a repeat assault offender. However, this extreme measure reflects a special and unconventional punishment, which was administered because of particular need. In general, the Torah does not sanction such punishments and, as we will see below, punishment is primarily financial (see Rivash 251).
We should note at this point that there are circumstances in which it is permitted, or even obligatory, to strike another. These include saving a victim from an aggressor, self-defense, hitting for educational or medical purposes, or where the victim asks somebody to hit him, for instance for purposes of atonement (see end of Shut Maharlbach, s.v. od ani omer). Details of these exceptions have been outlined in the aforementioned article and we will not repeat them here.
Financial Liability for Assault
As noted above, in most circumstances assault will bring along some financial liability on the part of the offending party.
The Mishnah mentions five distinct categories of damages that may be caused:
- damage proper (nezek);
- pain; (tza’ar)
- stoppage of work (sheves);
- cost of cure; (ripui) and
- shame (boshet).
Nezek: The Gemara explains that the phrase “an eye for an eye” used by the Torah is not to be understood literally, but refers rather to the payment of compensatory damages in money. One way in which this rule is derived is from the verse (Bamidbar 35:31), “You shall take no ransom for the life of a manslayer,” which implies that, while for a murderer there is no ransom or payment, there is a ransom for he who takes less than a complete life (in other words, causes physical injury).
The basic damage that a victim of assault suffered is appraised by calculating the difference between two values: how much the person injured would have been worth as a slave in the market before the infliction of the injury, and how much the injured party is worth after it. The difference represents the amount of damage proper (nezek). Under some circumstances, such as if the result of the injury is to render its victim deaf, he is considered worth nothing whatsoever, and the damage is accordingly equal to the whole of his former value.
Tza’ar: Pain is appraised, according to the conclusion of the Gemara, by assessing how much a person would be willing to pay in order to forgo the pain he suffered from the injury. To measure how much a person would be willing to receive in order to submit to the pain is considered unworkable, because some people would not willingly submit to pain even for all the money in the world.
Thus, where the pain is incident to a mutilation, the judges should say: “Suppose the wounded man to have been sentenced to have his hand cut off. How much would he be willing to pay to have it taken off under the influence of a drug [an anesthetic], rather than have it rudely hacked off? This amount would represent the damage of tza’ar” (Bava Kama 85a).
Sheves: Forstoppage of work,the Mishnah allows to the injured man the wages he would have received as a “watcher of cucumbers” – meaning, such wages as he can earn in his disabled condition. This is because “he has already been paid the value of his eye or the value of his hand” by means of the nezek payment. The estimate is paid in full, even though it is possible that injured man will recover sooner than was expected (Bava Kama 85b).
Ripuy: The financial liability for the cost of cure derives from the verse, “shall cause him to be thoroughly healed” (Shemos 21:19), meaning that the guilty party must pay for the services of a physician. He may not force the victim to use his own services, no matter what his skill may be; nor can he avoid the outlay of money by finding a physician that will do the healing work free of charge. (Mishnah, Bava Kama 8:1). The liability for cost of cure can exist without any of the other elements of damage; for instance, where one person forcibly throws chemicals on somebody else, causing his skin to turn white as a leper, it is his obligation to pay the cost of having the skin restored to a healthy color (Bava Kama 85b), even if it does not affect the injured party’s value as a slave or his ability to work.
Boshes: For damage of shame and embarrassment it is impossible to lay down hard and fast rules. As the Mishnah writes, “It all depends on who is put to shame and who it is that puts him to shame.” For certain acts of violence that involve only minor pain and no permanent disablement, but do involve an element of disgrace, the Sages fixed a scale of compensation (Bava Kama 90a). According to the Shulchan Aruch (420:44) the figures set by Chazal are fixed, and do not vary with differing levels of severity and with variant costs of cure; the Rema, however, writes (420:46) that the compensation is only fixed for boshes and for tza’ar, and not for variant levels of ripuy and sheves.
Financial Liability Today
The compensatory payment for damages that we have been discussing is in the category of a kenas (fine), which can thus only be imposed by a court of ordained (in a direct line from Moshe Rabbeinu) judges. A court of judges without ordination (semichah), such as we have today, is not qualified to try an action for injury and to give a judgment for a definite sum.
Because judges can not be ordained except in the Land of Israel, judgments for damage and pain could not be collected, even in Bavel (Bava Kama 84a). Today, we no longer have ordination – even in the Land of Israel (since the chain to Moshe Rabbeinu has been broken) – and therefore cannot give definite judgments on matters of injury.
As a matter of necessity, a system was worked out which soon spread to all countries in which the Jews enjoyed any sort of judicial autonomy. When parties complained of injuries, the judges, after hearing their allegations and the testimony of witnesses, indicated the sum that in their opinion the assailant should pay, and, if he refused, they would threaten him with excommunication (“nidduy”). This threat generally had the desired effect (Rambam, Sanhedrin 5:7, 17). Of course, Beis Din must verify the facts of the case before they implement the severe measure of excommunication (Shevus Yaakov, Vol. 1, no. 179). Also, if the guilty party makes a reasonable offer, Beis Din will lift the ban, even if the victim does not acquiesce (Rema).
The Rambam further notes the possibility of the victim taking the law into his own hands, and seizing his compensation from the guilty party’s property. The Rema (Choshen Mishpat 1:5) notes, concerning this option, that Beis Din will not give an estimation of damages so as to guide the victim in how much to take, but will rather instruct him post factum in how much to keep and how much to return. See Shulchan Aruch (Choshen Mishpat 1:5; 420:28), and commentaries thereto for details of the matter; a person must never take matters into his hands before consulting with an expert authority, for this course of action involves many potential pitfalls.
Taking Account of Circumstances
Because today’s system of financial liability is not a formal fine (kenas), there is room to take into account the specific circumstances of each case. Examples of this can be found in two rulings given by Rabbi Shmuel di Medinah (Maharashdam).
The Maharashdam was asked concerning somebody who smote and disgraced one of the elders of the community. He responded that since we find that somebody who disgraces an officer of the court is excommunicated as punishment for the offense, this is all the more applicable to disgracing a leader of the community, until he openly and wholeheartedly repents from his wayward deeds (Yoreh De’ah 190). The Maharashdam adds that one who injures his fellow should be treated in the same manner, while emphasizing that the particular case carries special severity since the victim was one of the community elders.
In another instance the Maharashdam (no. 98) addresses a case in which a person was hit in shul. In his responsum, he writes that the offense takes on particular severity on account of the scene of the crime – the holy sanctuary of a shul, in which the Shechinah dwells – so that the offender must be punished by excommunication and by corporal punishment (he leaves the particular details of the punishment to the community leaders). He adds that the victim should nonetheless forgive the guilty party, provided the latter receives his punishment and repents his misdeed.
Going to Court
In our day the effectiveness of excommunication by Beis Din is weaker than in bygone times of small and close-knit communities, and the question is therefore raised: Can a person go to secular courts for recourse for his injury?
Even in this matter we find a teshuvah of the Maharashdam (Yoreh De’ah 109), in which the author condemns the victim’s court action against the guilty party, citing the Rivash who states that Beis Din must “excommunicate all who lend their hands to support adjudication in non-Jewish courts.” He adds, citing the Sefer Ha-Terumos, that even matters of personal injury, which are not judged by Beis Din, must not be taken before non-Jews.
Shut Mishpatim Yesharim (Rabbi Yaakov Bardugo; Vol. 2, no. 180) likewise writes, concerning a case in which somebody smote his fellow and knocked out his teeth (the offender agreed to go to Beis Din and to pay whatever the rabbinic court rules, but the victim refused to do so and sued him in the secular courts), that it is forbidden to take the matter to court. He adds that it is only permitted to do so where the assaulter “attacks him regularly, and there is no recourse other than non-Jewish authorities.”
In all cases, it is incumbent on the parties to turn first of all to Beis Din, for a trial according to Torah law. Where the guilty party is unwilling to go to Beis Din, the dayanim will give the victim a special permit to take the matter to non-Jewish courts, and thereby to receive compensation for his injury (Shulchan Aruch 26:2).
Settling out of Court
In conclusion, it is important to note that not every case of assault must be brought before judges in Beis Din. In particular, where no actual injury occurred, and where the offender regrets his actions and begs the victim’s forgiveness, there is room to settle the matter out of court.
The Rambam writes in this vein (Chovel 8:10) that the victim should not act cruelly with the offender, and after it is clear that he has repented and truly regrets his deeds, he should relate to him with forgiveness and mercy.” The Rambam writes similarly in Hilchos Teshuvah (2:10).
As Rosh Hashanah approaches, we can perhaps extend the message beyond the narrow subject of physical assault that this article has discussed, and even to personal injury of any kind. In the merit of our acting with magnanimity with others, may Hashem even forgive us of our sins, and judge us for a good and sweet new year.