not sure if my previous e-mail went thru so I am sending this again. Excuse me if it is a duplicate.
Thank you for your well researched and thoughtful answers.
I believe that the damage done to a person is estimated/evaluated according to his value as a slave before vs his value as a slave after the nezek. I feel that this can be less than the actual value of the damage. why the round-about way of doing the evaluation? why not just evaluate the damage as it is.
I think that the value to an aruga/row of vegetables is also evaluated in such a way: how much was it worth with the undamaged aruga vs what it is worth now. Again, this is round about and might not equal the actual damage. Why not estimate the actual damage?
thank you for your thoughtful answers.
aurel littmann, brooklyn,usa
1)
a) If, for instance, somebody was assaulted and lost a finger, Chas v'Shalom, it is not easy to decide how much that finger is worth. The idea of evaluating his value as a slave before the injury and his value as a slave after the injury would be described in contemporary terms as how much his value as an employee went down as a result of the loss of the finger. It seems to me that in a modern scenario we would want to know how much earning power the victim lost as a result of his injury.
b) Rashi (Bava Kama 83b, DH ha'Chovel v'Kamah) writes that one estimates his loss of value if he would want to sell himself as a Hebrew slave. The Rosh there (8:1) disagrees with Rashi because a Hebrew slave can sell himself for only six years, so if one does the evaluation on the basis of a Hebrew slave he will receive less money than he deserves. Therefore, the Rosh writes that the evaluation on the basis of his value if he would be sold as a Caananite slave. In other words, according to the Rosh we estimate how much his earning capability was damaged for the rest of his life.
c) Therefore, I suggest that nowadays the way to do it (according to the Rosh) would be to estimate how much earnings the victim lost for the rest of his working life as result of the injury.
2)
a) The Din that we estimate the value of the field with the Arugah and the value without the Arugah is in fact derived from a verse in Bava Kama 58b. We learn from the verse, "And it ate in another field" (Shemos 22:4), that we do the estimation based on another field. So we could simply say that this is a Gezeiras ha'Kasuv without a reason, but in fact I think we can understand a reason for this Halachah.
b) My idea is that one looks at the damage in a global way, not in a local way. For instance, if some damage was done to a small part of a house which is nevertheless difficult to repair, the value of the house when the owner wants to sell it could decrease a lot as a result. This is why homesellers are very careful to fix up even minor problems in the house before they invite potential buyers; even though the damage might be relatively small, the general value of the property can often depend on the good impression that a buyer receives.
c) Similarly, even though only one Arugah was eaten up, this might lower significantly the value of the whole field when a buyer sees the field with a totally destroyed Arugah. This may be the thinking behind the global estimation.
Kol Tuv,
Dovid Bloom