QUESTION: The Gemara (90b) records a dispute between Shimon ha'Timni and Rebbi Akiva. According to Shimon ha'Timni, the judges must verify for themselves that the person or animal accused of damaging was actually capable of doing the alleged damage (for example, they must verify that the person's fist was strong enough to administer the blow). Rebbi Akiva maintains that Beis Din may rely on the testimony of witnesses who claim that they saw the act.

The Gemara later cites a Beraisa which teaches that when a Shor Tam kills a person and afterwards damages, he is judged by Beis Din for the killing and not for the damage. However, when a Shor Mu'ad kills and then damages, Beis Din first judges the Shor for the damages and afterwards for the killing. If, however, Beis Din judged the Shor Mu'ad for the killing first (and it was found guilty), Beis Din does not judge the Shor afterwards for the damage.

Why does judging the Shor for the killing exclude judging it for the damages? Rava answers that the Rabanan taught that this Beraisa follows the opinion of Shimon ha'Timni who always requires that the Beis Din assess whether the Shor was capable of doing the damage. When Beis Din judged the Shor for the killing and decreed the death penalty for it, the ruling may not be delayed ("Inuy ha'Din") in order to wait for the Beis Din's assessment in the monetary case. Since Beis Din cannot determine whether the damage done was appropriate for this Shor, Beis Din cannot rule on the owner's monetary obligation for the damage.

The Gemara is difficult to understand. In a normal situation of Inuy ha'Din, the death penalty is not administered in order to prevent the defendant from undue suffering. In order to avoid afflicting those involved in the case, Beis Din does not delay its verdicts. Why does the concern for Inuy ha'Din apply to a Shor? An animal is not aware that it is being judged for death. Why should the laws of Inuy ha'Din apply to its judgment?

(a) The SHITAH MEKUBETZES (91a, DH Hacha) writes in the name of the RA'AVAD that the laws of Inuy ha'Din apply to the judgment of an animal because of the principle, "k'Misas ha'Be'alim Kach Misas ha'Shor," which the Gemara earlier (44b-45a) derives from a verse. This principle teaches that the same laws which would apply to the judgment of the owner apply to the judgment of the Shor. Accordingly, just as Beis Din may not delay the execution of the owner if he had been sentenced to death, Beis Din may not delay the killing of his Shor.

The YAM SHEL SHLOMO proves that the principle of "k'Misas ha'Be'alim" applies even when it would seem to defy logic. For example, the Gemara in Sanhedrin (78a) teaches that a Shor which is a Tereifah which kills a person is exempt from the death penalty. Since a man who is a Tereifah who murders is exempt from the death penalty, an animal is also exempt in such a situation.

The reason why a man who is a Tereifah who kills is exempt is that the witnesses who testify against him cannot become Edim Zomemim, and any testimony of witnesses who cannot become Edim Zomemim is invalid (see Bava Kama 75b). Normally, when a second set of witnesses testifies that the first set of witnesses was with them at a different location at the time of the alleged crime, the first set of witnesses should receive the punishment which they attempted to give the defendant. However, in this case the witnesses cannot be given the death penalty, because they tried to convict a man who was a Tereifah, and a man who kills a Tereifah is not put to death.

This reasoning clearly does not apply to a Shor Tereifah that killed a person (because witnesses who testify that a Shor should be killed are not killed themselves if they are found to be Edim Zomemim). Nevertheless, the Gemara in Sanhedrin (78a) compares the law of a Shor to the law of a man in this regard. Clearly, the laws are compared because of the principle of "k'Misas ha'Be'alim," even though logic would dictate that the laws of the judgment of a Shor should differ from the laws of the judgment of a man.

(b) The DEVAR AVRAHAM (2:34:2) cites the YAD RAMAH in Sanhedrin (35a) who writes that prohibition against delaying the punishment of a person (Inuy ha'Din) is derived from the verse, "v'Ahavta l'Re'acha Kamocha" (Vayikra 19:18). The Devar Avraham explains that the laws of the judgment of a Shor cannot be comparable entirely to those of a man, because a Shor which is Chayav Sekilah is not pushed off a two-story building in the same way that a man is executed with Sekilah (Sanhedrin 45a). The Gemara there derives this detail of Sekilah from the same verse, "v'Ahavta l'Re'acha Kamocha," which teaches that Beis Din must execute the guilty with the least painful form of punishment. In the case of Sekilah, this means that Beis Din ensure that the guilty die quickly, but not be defaced by a higher fall. The Devar Avraham asserts that falling from a two-story building is clearly not required for the death of the Shor.

Therefore, the Devar Avraham asserts that there must be another source for the prohibition of Inuy ha'Din. He suggests that the source is the verse, "u'Vi'arta ha'Ra mi'Kirbecha" -- "And you shall destroy the evil from your midst" (Devarim 13:6). The Gemara in Chulin (139a) applies this verse even to a bird who killed a person (and requires that the bird be eradicated from the world). Accordingly, Beis Din may not delay the punishment of the Shor which killed, because the Shor which killed a person is considered an entity of evil in the midst of the community. (D. Bloom)

QUESTION: The Mishnah (90b) relates an incident in which somebody uncovered the hair of a woman in the market place. When she came before Rebbi Akiva to claim compensation for the assault, Rebbi Akiva ruled that the assailant must pay four hundred Zuz for the woman's embarrassment. The defendant attempted to prove that Rebbi Akiva's ruling was incorrect. He waited until he found the woman standing at the gate of her courtyard, and he proceeded to break a barrel containing an Isar's worth of oil in front of her. She removed her hair-covering and collected the oil from the ground with it.

The man returned to Rebbi Akiva and argued that if the woman was prepared to embarrass herself for the sake of only one Isar's worth of oil, it is unreasonable that he should have to pay her four hundred Zuz for uncovering her hair. Rebbi Akiva replied that his reasoning was invalid. Although a person is forbidden to cause harm to himself, nevertheless if he does so he is exempt from payment. In contrast, one who harms another person must pay for the damage (or embarrassment).

The Gemara (end of 91a) questions the Mishnah from a Beraisa. The Beraisa states that Rebbi Akiva told the defendant that a person is permitted to cause harm to himself. The Gemara (91b) later resolves the contradiction by saying that Rebbi Akiva's opinion with regard to harming oneself is the subject of a Machlokes Tana'im. The Beraisa maintains that a person is permitted to harm himself, while the Mishnah maintains that one is prohibited from harming himself.

TOSFOS (91b, DH Ela) writes that according to the opinion that one is prohibited from harming himself, the prohibition applies even when the harm is done for a necessary reason. This is evident from the fact that the woman who uncovered her hair did so to save the oil, and Rebbi Akiva (in the Mishnah) nevertheless stated that such self-inflicted embarrassment is prohibited. (See also RAMBAM Hilchos Chovel u'Mazik 5:1.)

However, Tosfos' conclusion does not seem consistent with the continuation of the Gemara. The Gemara states that the Tana who maintains that one is not permitted to injure oneself is Rebbi Elazar ha'Kapar. He teaches that one who accepts upon himself the oath of a Nazir is considered a sinner, as the verse says, "He (the Kohen) will atone for him (the Nazir) because he sinned against the soul" (Bamidbar 6:11). He is considered a sinner because he denied himself the pleasure of drinking wine. If a Nazir is considered a sinner merely because he refrained from wine, one who refrains from everything (Rashi explains that he afflicts himself by fasting) certainly is not conducting himself properly.

The Gemara implies that if one would benefit in some tangible way by refraining from wine, such as receiving money in return, he would be permitted to refrain from wine and earn money this way. This is because he merely trades one pleasure for another. Why does Tosfos write that one may not harm oneself even for a good reason (such as to earn money)?

ANSWER: RAV MOSHE FEINSTEIN zt'l (IGROS MOSHE CM 1:103) answers that a distinction must be made between a person who refrains from wine in order to earn money and a person who actively harms himself in order to earn money. The person who refrains from wine in order to earn money has two conflicting interests. When he chooses to earn money and not drink wine, he shows that his more powerful desire is to earn money. If he would drink wine, he would end up feeling remorseful for the money that he did not earn but so strongly desired.

In contrast, when one actively harms himself in order to gain some tangible pleasure, his act is not an expression of one desire that wins over another. Rather, his act shows that for him, pain overrides desire. Pain cannot be negated by desire even if he chooses to inflict pain upon himself in order to gain money. Since this pain is not negated by the desire, the Torah prohibition against harming oneself still applies.

According to this reasoning, Rav Moshe Feinstein zt'l writes that it follows that one is forbidden from drawing blood merely for the purpose of earning money from its sale (such as when the blood is not needed for saving lives). This is because drawing blood constitutes harming the body in an active and painful way which is not negated by the desire to earn money. (He concludes, however, that drawing blood in return for money actually should be permitted, because the Gemara views bloodletting in a favorable light and considers it a healthy form of treatment of illness. Accordingly, it should be permitted even when one's motive is merely to receive money. See also Igros Moshe CM (2:66), where he discusses plastic surgery in light of this Sugya.) (D. Bloom)