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Mishpatim 5775-2015

“Injuring a Fellow Human Being”

by Rabbi Ephraim Z. Buchwald

Among the 63 mitzvot that are found in this week’s parasha, parashat Mishpatim, are the fundamental laws regarding personal injury.

The Torah, in Exodus 21:18-19 states, וְכִי יְרִיבֻן אֲנָשִׁים וְהִכָּה אִישׁ אֶת רֵעֵהוּ בְּאֶבֶן אוֹ בְאֶגְרֹף וְלֹא יָמוּת, וְנָפַל לְמִשְׁכָּב. אִם יָקוּם וְהִתְהַלֵּךְ בַּחוּץ עַל מִשְׁעַנְתּוֹ, וְנִקָּה הַמַּכֶּה,  רַק שִׁבְתּוֹ יִתֵּן וְרַפֹּא יְרַפֵּא, If men quarrel, and one strikes his fellow with a stone or a fist, and he does not die, but falls into bed, if he gets up and goes about outside under his own power, then the one who struck him be absolved. Only for his lost time shall he pay, and he shall provide for healing.

Rabbi Abraham Chill in his masterful book, The Mitzvot: Their Commandments and Their Rationale, lays out the basic rules and legal statutes regarding personal injury. Rabbi Chill cites the Talmudic statement found in the Mishnah, Baba Kama 2:6: אָדָם מוּעָד לְעוֹלָם, that a person is held personally liable for any damage that he or she afflicts on others, whether intentionally or unintentionally, consciously or unconsciously.

Despite the Torah’s statement in Exodus 21:24, עַיִן תַּחַת עַיִן, an eye for an eye, the oral tradition interprets this statement to mean that a victim is entitled only to monetary compensation for an injury.

Thus, one who causes injury to his neighbor is liable to pay the victim five penalties. These include compensation for: 1. permanent physical disability; 2. pain; 3. medical treatment; 4. loss of earning power resulting from the injury; 5. the indignity and shame inflicted upon the victim.

If there is a reasonable chance that the victim might die from the injury, the Talmud states that the person who inflicted the blow is imprisoned. If the victim recovers and is able to walk out on his own, the perpetrator is then released, but is still liable to pay the victim the five penalties.

Rabbi Chill outlines the methods of assessing compensation. 1. For permanent physical disability, the perpetrator must pay the assessed difference between the financial value of the individual’s service before the injury and the value of his service after the injury. Thus, the perpetrator must pay the difference in the value of a worker who has lost a limb, as opposed to a worker who is uninjured. 2. The compensation for pain is assessed on the basis of the pain caused when performing a surgical procedure on the injured person with anesthesia or without anesthesia. 3. All medical treatment and all doctor bills must be paid in full to the victim until he or she is fully healed. 4. The perpetrator must pay the victim for the loss of any earnings suffered during the convalescence and rehabilitation period. 5. Finally, if there is a permanent injury leading to an embarrassing deformity, compensation must be paid for the embarrassment suffered by the injured party. Also, payment is to be made for how the injury was inflicted, whether the perpetrator was a minor, an animal, etc., and what embarrassment was suffered in the way the injury was inflicted.

Rabbi Chill points out that the Torah (Exodus 2:13) is so concerned with the sanctity of human life, that it calls one who even raises his hand against another person, a רָשָׁע, a wicked person. To achieve full contrition, the perpetrator must also beg the victim for forgiveness.

The rabbis deal extensively with the issue of the challenging implications of the verse, “An eye for an eye,” (Lex Talionis) insisting that it can only mean monetary compensation. After all, it would be impossible to equitably take out the eye of a person who is already missing one eye, since rendering the perpetrator totally blind, would hardly be “measure for measure.” Also, it is impossible to accurately gauge whether a particular perpetrator could physically withstand the amputation of a particular limb (see Mishpatim 5762-2002).

The Talmud in Baba Kama 84a states: We have learned that an “eye for an eye,” means monetary compensation. But, perhaps it means an actual eye? Rav Ashi therefore said, it is learned from the words, Deuteronomy 22:29, “For he [the man who raped a woman] had humbled her…”  Just as in the case of rape, the punishment is monetary compensation, so in the case of injury, it is monetary compensation.

According to Rabbi Joseph Hertz the rule of “an eye for an eye,” is worded in this manner, even though it means monetary compensation, is so it will serve as a means of setting the maximum equitable punishment. One may not demand more than the value of an eye for an injury done to an eye, since there must be an equitable relationship between the crime and the punishment. Rabbi Hertz adds that not only must the punishment be equitable, but that all citizens must be considered equal before the law, and that all injuries must be valued according to the same standard. One cannot take out two eyes for a single eye, even though the victim may be a member of the royal family. The same punishment must be meted out to both royalty and to the lowly worker.

Considering that there are legal systems today that still practice “an eye for an eye,” the Torah’s understanding of the laws of personal injury are quite remarkable, especially in light of their great antiquity.

May you be blessed.

Please Note: This Shabbat is Shabbat Parashat Shekalim. On this Shabbat, an additional Torah portion, known as Parashat Shekalim, is read. It is the first portion of four additional thematic Torah portions that are read on the Shabbatot that surround the holiday of Purim. This week’s supplementary Torah reading is found in Exodus 30:11-16 and speaks of the requirement for all the men of Israel, aged 20 and above, to bring a half-shekel in order to be counted as a member of the People of Israel. In later years, these shekels were donated to the Temple in anticipation of the festival of Passover, when funding for the daily sacrifice had to be renewed.