I would like to know how Nezek, Tza'ar, etc. are calculated today when it is not possible to evaluate injuries based on the decreased value of an Eved.

Thank you,

Michael, cleveland ohio

Third, the BACH (CM 420:15) and the NETZIV (in Meromei Sadeh) point out that the Gemara seems to apply the rule of evaluating a person like a slave sold in the marketplace even today (see 84a and 84b), and yet the Halachah of Eved Ivri does not apply nowadays. In addition, how will a person pay Nezek to a woman according to Rashi, since a woman (over the age of twelve) cannot be sold as an Amah Ivriyah! In addition, the Gemara (84a) says that we evaluate damage done to a male child in accordance with his price as an Eved, even though a male child (under the age of thirteen) cannot be sold as an Eved Ivri!

We might suggest that in all of these cases, the Gemara does not mean to say that we determine their value literally by the value of an Eved, but by the value of hired workers, since all of these individuals can be hired as workers. However, the Gemara (84a) clearly says that evaluating a child as an Eved would be disgraceful to him, since it would look like he was being sold as a slave. Also, with regard to the payment of Pegam (which is a form of Nezek) given to a woman who was raped, Rashi (84b, DH u'Pegam) quotes the Gemara in Kesuvos that teaches that we determine the woman's value by the value of a Shifchah Kena'anis who is being sold in order to marry her to her buyer's Eved Kena'ani.

The Acharonim offer a number of answers to these questions.

1. The Bach suggests that we certainly determine the amount to be paid as Nezek based on the value of an Eved Kena'ani. However, there are times when a person is embarrassed to be placed on the podium in the marketplace to be evaluated as though he is being sold as a slave. Rashi is teaching that in these cases, a man can insist that he should at least be paid his value if he were sold as an Eved Ivri.

2. The YAM SHEL SHLOMO writes that even though the person who was damaged lost only the profit that he could have made as an Eved Ivri, as Rashi writes, nevertheless it is impossible to determine in a single sale what that value would be for the entire life of the person (as the Rosh asks), and what the value of a woman or child would be. Therefore, the best that we can do is determine the value of the person as if he were being sold as an Eved Kena'ani. We will base the payment of the Mazik on that value. Similarly, if a woman or child is damaged, his loss is because he can no longer hire himself out as a hired worker for a high price, and her loss is due to the fact that she will not receive as large of a dowry. However, we determine his or her value based on the price of an Eved Kena'ani or Shifchah Kena'anis.

This also seems to be the opinion of the RABEINU YEHONASAN cited by the Shitah Mekubetzes who explains that the Mishnah is referring to an Eved Kena'ani, even though he explains like Rashi, that the damage prevents the person from being sold for a high price as an Eved Ivri.

According to these explanations, Rashi agrees with the Rosh that the Eved mentioned in the Mishnah refers to Eved Kena'ani.

(c) Rashi might not mean that we evaluate the Nizak as if he were an Eved Ivri who is being sold to a Jew. Rather, we evaluate him as an Eved Ivri being sold to a Nochri (see Kidushin 16a), since the Nizak -- had he been destitute -- could have sold himself to a Nochri. Since a Nochri is not required to free an Eved Ivri after six years (see Kidushin 15b and Chart #4 there), and he is not required to treat an Eved Ivri differently than any other Eved, the price of an Eved Ivri sold to a Nochri is close to the price of an Eved Kena'ani. However, his price must be less than that of an Eved Kena'ani, since a Jewish Eved cannot work on Shabbos and Yom Tov, and he must be freed at the arrival of the Yovel year (if the Jewish governing body is dominant and the Nochri is subject to its laws).

This answers all of the questions on Rashi's explanation, because an Eved Ivri can be sold to a Nochri in the marketplace, and even nowadays, and even an adult Jewish woman can be sold in such a manner. (M. Kornfeld)