1)

EVALUATION OF PAIN (cont.)

(a)

(Mishnah): We evaluate how much a person like this would want to receive...

(b)

Question: How do we evaluate pain when there is also Nezek? (He already receives compensation for losing the limb)!

(c)

Answer (Shmuel's father): We evaluate how much one like this would want to receive to have his leg or arm cut off.

(d)

Objection #1: This is wrong. He would demand money equal to all five damages!

(e)

Objection #2: A normal person would not agree to have his limb cut off for any sum of money!

(f)

Correction: We evaluate how much one like this would want to receive to have his limb cut off if it was dangling (and useless).

(g)

Objection: That is too much, for it also entails embarrassment (that his limb will be fed to dogs)!

(h)

Correction: We imagine that the king had decreed that his limb must be cut off; we evaluate how much one would want to receive to have it cut off the way the damager did this, as opposed to through a potion (painlessly).

(i)

Objection: A normal person would not agree to cause himself pain on condition to receive money!

(j)

Correction: We imagine that the king had decreed that his limb must be cut off. We evaluate how much one would pay to have it cut off (painlessly) through a potion, as opposed to the way the damager cut it.

(k)

Question: Shmuel's father said that we evaluate how much one like this would want to receive, not to pay!

(l)

Answer (Rav Huna brei d'Rav Yehoshua): He means, the victim receives from the damager what a man would pay to the king (to have his limb cut off painlessly).

2)

REFU'AH

(a)

(Mishnah): Medical expenses: if Reuven hit Shimon, he must cure him...

(b)

(Beraisa): If sores developed due to the blow and covered the wound, Reuven must heal him and pay for his Sheves due to the sores;

(c)

If the sores are not due to the blow, he is exempt from Refu'ah and from Sheves;

(d)

R. Yehudah says, even if they are due to the blow, he need only heal him. He is exempt from Sheves;

(e)

Chachamim say, the Torah equated Sheves and Refu'ah to teach that whoever is liable for Sheves is liable for Refu'ah, and whoever is exempt from Sheves is exempt from Refu'ah.

(f)

Question: What do they argue about?

(g)

Answer #1 (Rabanan of Bei Rav): They argue about whether Shimon may wrap up the wound (to avoid pain of the cold, and Reuven remains liable for sores that develop due to this).

1.

Chachamim say that he may wrap up the wound (i.e. he is entitled to do so, and Reuven remains fully liable);

2.

R. Yehudah says, he may wrap up the wound (if he wants that Reuven retain liability);

i.

(Even so, if he did so and sores developed,) Reuven must heal him. We learn from the double expression "v'Rapo Yerapei";

ii.

He is exempt from Sheves. The Torah did not repeat this.

(h)

Objection (Rabah): If he may not wrap up the wound, Reuven is exempt even from Refu'ah!

(i)

Answer #2 (Rabah): All agree that he is entitled to wrap up the wound, but not excessively.

1.

R. Yehudah says, since he may not wrap excessively, Reuven is liable only for Refu'ah (due to the double expression), but not for Sheves;

2.

Chachamim say, since the Torah obligates Reuven for Refu'ah, he is also liable for Sheves, for the Torah equates these.

3.

R. Yehudah says, the Torah explicitly exempted him from Sheves (in this case) - "just (he will give his Sheves)".

4.

Chachamim say that that discusses when the sores are not due to the wound.

(j)

Question: According to the latter Chachamim (in the Seifa of the Beraisa), who equate Refu'ah to Sheves, why did the Torah use a double expression of Refu'ah? (He is exempt even from Refu'ah!)

(k)

Answer: It teaches like Tana d'Vei R. Yishmael;

1.

(Beraisa - Tana d'Vei R. Yishmael): "V'Rapo Yerapei" teaches that doctors may heal.

(l)

(Beraisa) Question: What is the source that if sores developed due to the blow and covered the wound, he must pay for Refu'ah and Sheves?

(m)

Answer: "Just he will give his Sheves, and v'Rapo Yerapei".

1.

Suggestion: Perhaps this applies even if the sores are not due to the blow!

2.

Rejection: It says "just".

(n)

R. Yosi bar Yehudah says, "just" teaches that even if they are due to the blow, he is exempt.

1.

Version #1: He is fully exempt, like the latter Chachamim.

2.

Version #2: He is exempt from Sheves but liable for Refu'ah, like R. Yehudah says.

(o)

(Beraisa) Suggestion: Perhaps this applies even if the sores are not due to the blow!

(p)

Rejection: It says "just".

(q)

Question: If the sores are not due to the blow, why do we need a verse to teach that he is exempt?!

(r)

Answer: Not due to the blow' means as follows:

1.

(Beraisa) Suggestion: If Shimon (the victim) disobeyed the doctor and ate honey and sweet things, which are bad for a wound, and dead skin arose on it, perhaps Reuven (the damager) must heal him!

2.

Rejection: "Just" teaches that he is exempt.

3.

If Reuven says 'I will cure you', Shimon can say 'I fear you. I want someone else.'

4.

If Reuven says 'my relative will cure you for free', Shimon can say 'a proper doctor demands wages.'

5.

If Reuven says 'I will hire a doctor from afar for you', Shimon can say 'he will return home. Perhaps he will not take proper responsibility for my health".

6.

If Shimon says 'give me the wages of a doctor, I will heal myself', Reuven can say 'you will heal improperly, and this will result in larger medical expenses'.

7.

If Shimon says 'fix the amount to heal, and give this to me to heal myself' (and you will be exempt), Reuven can say 'you will be negligent, and people will think that I harmed you severely.'

3)

THE OTHER PAYMENTS

(a)

(Beraisa): All (other four damages) are paid even when Nezek is paid.

(b)

Question: What is the source of this?

(c)

Answer #1 (Rav Zvid): "A wound in place of a wound" obligates for pain even when Nezek is paid.

(d)

Question: We need that verse to teach that one pays whether he damaged b'Mezid or b'Shogeg, whether he was forced or acted willingly!

85b----------------------------------------85b

(e)

Answer: Had it came only for that, it should have said 'a wound for a wound.' It says "a wound in place of a wound" to teach both.

(f)

Answer #2 (Rav Papa): "V'Rapo Yerapei" teaches that one pays for Refu'ah even when Nezek is paid.

1.

Question: The verse teaches like Tana d'Vei R. Yishmael (to permit doctors to heal)!

2.

Answer: To teach that, it would have said 'a doctor will heal'; rather, it says "v'Rapo Yerapei", to obligate for pain when Nezek is paid. (The Gemara connotes that the verse comes only for this. Zera Yitzchak explains that it teaches both of these.)

3.

Question: We used the double expression above (to obligate for sores)!

4.

Answer: Had the Torah doubled the same word twice, we would only lean as above. It used a different word to obligate for Refu'ah when Nezek is paid.

(g)

Question: It follows that the other damages apply even when there is no Nezek. What is the case?

(h)

Answer: Regarding pain, the Mishnah discusses one who burned him with a spit or nail, even on his fingernail, where no wound will result;

1.

Refu'ah - he had a wound that was healing, and a potent potion changed his skin to the color of Tzara'as, and another potion is needed to restore the color;

2.

Sheves - he took him to a room and locked him in;

3.

Embarrassment - he spit in his face.

(i)

(Mishnah): To evaluate Sheves, we view what he would earn like one who guards gourds...

(j)

(Beraisa): To evaluate Sheves, we view what he would earn like one who guards gourds;

1.

Question: This is unfair! When he recovers, he will have a better job, such as drawing water or running errands!

2.

No, it is fair. When he recovers, he can only guard gourds (e.g. a limb was cut off). He already received compensation for the limb.

(k)

(Rava): If Reuven cut off Shimon's hand, he pays for the hand. Regarding Sheves, we view Shimon like one who guards gourds;

1.

If he broke Shimon's leg, he pays for the leg. Regarding Sheves, we view Shimon like one who guards the door;

2.

If he blinded Shimon's eye, he pays for the eye. Regarding Sheves, we view Shimon like one who grinds;

3.

If he deafened Shimon, he pays Shimon's full value (for now he cannot work at all).

(l)

Question #1 (Rava): If Reuven cut off Shimon's hand, broke his leg, blinded his eye, and deafened him, and no assessment of Shimon's value was made in between, what is the law?

1.

Does it suffice to make one assessment?

2.

Or, do we make a separate assessment for each damage?

3.

Question: What difference does it make?

4.

Answer: This determines whether or not he must pay the pain and embarrassment of each damage.

i.

Granted, he need not pay the Nezek, Refu'ah and Sheves of each. He pays for his full working value as if he killed him (and he pays all costs of Refu'ah until he is healed from everything);

ii.

However, there was pain and embarrassment from each damage. (Perhaps) he must pay each.

(m)

Question #2 (Rava): If you will say that we make only one assessment, what if assessments of Shimon's value were made in between the damages?

1.

Since individual assessments were made, he must pay for each?

2.

Or, since he did not yet pay, he pays only once for all the damages?

(n)

This question is unsettled.

4)

TEMPORARY DAMAGE

(a)

Question (Rabah): If Reuven damaged Shimon, and later Shimon will return to full health, but because he cannot work now, he is worth less, what is the law?

1.

Question: What is the case?

2.

Answer: He hit him on the hand. It shriveled, and later it will return to normal.

3.

Since it will later return to normal, Reuven is exempt (from paying for the hand);

4.

Or, since Shimon is worth less now, perhaps Reuven is liable!

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