Possible Future Consequences (91a)

Omed Be-Nezikin (91a)[1]

 

 

 

I. THe Principle of Omed in Murder cases

 

            Our passage’s point of departure is that murder cases require omed, that is to say, a determination must be made whether the instrument that the murderer used to kill his victim was fit to cause death. While the passage focuses on the instrument itself, what it means is the killing act in its entirety – the instrument together with the action that was performed with it - must be such that based on an objective assessment of the situation and detached from the actual results (to the extent that this is humanly possible), the lethal consequences could have been foreseen (for the specifics, see Rambam, Hilkhot Rotze’ach 3:1-6). As cited by Rashi, this law is derived from a Scriptural decree: "And if he smite him by hand with a stone, whereby he may die" (Bemidbar 35:17) – liability is limited to a case where the crime was committed with something fit to kill.

 

            In order to understand this Scriptural decree, let us examine the words of Rashi and the Rambam. Even though they appear in a context that we have not yet discussed – omed in cases of damage and injury – they may provide an explanation for the law in the case of murder as well. Rashi (90b, s.v. she-masur) writes that if the instrument that caused the injury was not fit to do so, the person who caused the injury is exempt for the following reason: "Because it was on account (machamat) of the weakness and delicateness of this one that he was injured." The word machamat here is exceedingly significant and requires explanation. The word machamat implies a causal connection between an event and its consequence.

 

Is it really possible to say that the victim suffered his injury not on account of the fact that the offender injured him? Of course not. When Rashi says "on account," he talks not about factual causality, but rather about halakhic causality: Halakha chooses to view the offender's injurious action as the cause of the injury only if in ordinary circumstances it could have been foreseen that such an action would lead to what actually happened. When the consequence could not have been foreseen, we assert that: 1) Presumably, an exceptional factor was involved, e.g., special weakness of the victim. 2) We view that exceptional factor as the cause of the injury, and the blow delivered by the offender as a given in the field. These determinations, and especially the second one, are derived from the Scriptural decree. For surely even when Reuven strikes Shimon on the head with a blow that is fit to kill and he kills him, it could be argued that it was Shimon's health conditions that led to his death, for had he been particularly strong, he would have survived the blow. But in such a situation the circumstances regarding Shimon's condition are the given in the field, and the blow is the cause of the injury. When the blow is not of such a force that it would ordinarily lead to death, we hang the death on the victim's weakness. And even in the case of one of the examples discussed in our passage, regarding one who struck another person in the eye and blinded him, where it is difficulty to see special physiological sensitivity of the victim, Rashi (s.v. de-be'inan) writes: "And with this he should not have become blinded, but rather he had bad luck" – even the victim's bad luck can be the cause of his death, and not the offender's action that should not have led to the actual result.

 

            Of course, the dividing line between situations in which the cause of the injury is the blow and situations in which the cause is some extraneous circumstance is not clear-cut. Clearly the victim's visible physical traits are part of the extraneous circumstances that must be considered when assessing whether a particular blow could have been expected to cause death or injury – the intensity of a blow that could have been expected to cause injury to a thirty year old macho-man is not the same as the that which could have been expected to cause injury to a newborn. That is to say, it is sometimes easier to attribute an injury to the victim's bad luck, rather than to "his weakness and delicateness," for the force of the blow that could have been expected to cause death is assessed in consideration of the victim's evident "weakness and delicateness," and therefore the attribution – when made – is specifically in a case where the weakness or delicateness was not readily apparent.

 

            The Rambam (Hilkhot Chovel u-Mazik 1:18) presents a rationale that, alongside the Scriptural decree, underlies the law of omed, and it would seem that his understanding is very different from that of Rashi. The Rambam writes that one who causes an injury with an instrument that could not have been expected to lead to the injury that was actually caused is "like someone who suffered an unavoidable accident (anus)." Rashi locates the exemption in the realm of the causal connection between the action performed and the injury that resulted, while the Rambam apparently locates it in the realm of the guilt and intentionality of the offender. He is not liable because he is considered a victim of ones (unavoidable accident).

 

            It would seem, however, that the gap between Rashi and the Rambam is not that wide. Clearly we are not dealing here with ones in its plain sense, but rather with someone who is anus. In the case of murder we are dealing with someone who killed another person in the presence of two witnesses who had forewarned him that if he kills the other person he will be liable for the death penalty, and he told them that he is aware of the consequences of his action. The point is not the subjective intentionality, but the objective nature of his action. Since such an action should not have caused death, regarding the result of death he is considered as having suffered what by law is regarded as ones, since this was not one of the expected consequences of an action such as he performed, even if he himself believed and hoped that his action would have led to that consequence.

 

            To summarize this point, even though at first glance there is a wide gap between Rashi, who says that the injury was not caused by the offender, and the Rambam, who says that it was caused by him but he was the victim of ones, in my opinion, the difference is not so great. On the one hand, even according to Rashi we are not dealing with actual causality but with halakhic causality, and on other hand, even according to the Rambam the law is rooted in the objective definition of the action and not in the subjective responsibility of the offender. In any event, we are certainly not dealing here with an unintelligible Scriptural decree. On the other hand, we can understand why a special derivation was necessary, as this is a novel halakhic principle and not a particular situation that gives expression to known principles.

 

II. THe uncertainty regarding omed in cases of Damage

 

            Thus far we have been dealing with the concept of omed, which together with its being a condition for liability in cases of murder, our passage accepts as a given. Here the Gemara raises a question:

 

The question was raised: Is an inspection [of the instrument] essential also in the case of mere damage, or is no inspection necessary in the case of mere damage? Shall we say that it is only regarding murder that we have to inspect the instrument, as by means of one instrument life could be taken, while by means of another life could not be taken, whereas regarding mere damage any instrument would be sufficient, or is there perhaps no difference?

 

            Why should a distinction be made between murder and damage? Rashi relates to this question, but his words are not entirely clear:

 

Regarding murder we have to inspect the instrument, because it is written: "And if he smite him by hand with a stone, whereby he may die" (Bemidbar 35:17). But regarding damage we do not have to inspect the instrument, because even if this object is not fit to cause damage he is liable, because sometimes damage is caused with anything.

 

From the first part of this comment, the distinction seems to stem from the fact that regarding murder cases we have a derivation for the law of omed, while regarding damage there is no such derivation. But it is clear from the continuation that this is not the case, and that it would not be impossible to draw an analogy between the two cases, and therefore the distinction must rest on some rationale. But this rationale that Rashi proposes – "because sometimes damage is caused with anything" – is difficult to understand. Does he mean that a plastic knife does not ordinarily kill a person, but it does cause damage and injury? Surely it is clear to all that as in the case of death so too in the case of damage, some instances of damage could have been expected, while others are surprising and could not have been expected in the given circumstances. It is only based on this assumption that we can apply the law of omed to cases of damage, should we choose to apply it there; what then is the distinction?

 

Perhaps we can say that Rashi does not mean to propose a factual distinction, but rather to establish that there are two different categories: death and damage. An object that could not have been expected to kill is not considered a lethal object and there is no liability when it is used. But the category of damage is a much broader category, and there is no such thing as an object that does not cause damage (such a rationale is raised regarding the distinction discussed in one stage of the passage between pits of nine and ten handbreadths). But this rationale is also difficult to understand, because the law of omed in a case of murder applies even when Reuven killed Shimon with a stone that could not have been expected to kill Shimon, but would have been expected to kill Shimon's baby child, and therefore you cannot say that such a stone cannot be considered a lethal object. The bottom line is that I do not fully understand Rashi's position.

 

I myself am inclined to explain the distinction based on the rationale that in murder cases there is special focusing – which arises in various contexts in the Gemara (especially in the ninth chapter of Sanhedrin) and requires separate examination – on the lethal action over and beyond the lethal consequences. This being the case, there is room to say that the law of omed, which demands that the action in itself be of a murderous nature, is specific to cases of murder.

 

In any event, our passage concludes that the law of omed applies to cases of damage as well, and thus we see that even though the law is founded on a Scriptural decree, there is nothing that prevents its being applied in other contexts, including cases of damage and injury.

 

The stages that the Gemara passes on its way to its conclusion are of great importance, and they relate to a number of interesting issues. Today's shiur will focus on one such issue that deals with a fundamental law in the realm of injury.

 

III. Omed with respect to the condition of the victim

 

Come and hear: Regarding the five payments [in cases of injury], an estimation is made and the payment is made [to the victim] straight away, though healing and loss of employment have to be estimated for the whole period until he completely recovers. If after the omed was made his health continued to deteriorate, the payment will not be more than in accordance with the previous estimation. So also if after the omed was made he recovered rapidly, payment will be made of the whole sum estimated. Does this not show that omed is essential also in the case of mere damage? That an omed has to be made of the length of the illness likely to result from the wound has never been questioned by us, for it is certain that we would have to make such an estimation; the point that was doubtful to us was whether we estimate if the instrument was one likely to do that damage or not.

 

            At first glance, the law of omed regarding injury is not at all connected to the law of omed that we have been discussing thus far.

 

[For the sake of convenience, I will designate the two types of omed with the terms used in the passage: omed of the damage ("an omed of the length of the illness likely to result from the wound") and omed of the instrument ("we estimate if the instrument was one likely to do that damage or not"), which we can also call omed of the action.]

 

The difference between the two relates both to the practical content of the law and to the reasoning. As for the practical content of the law, omed of the instrument is carried out after the injury, but it tries to ignore the bias of hindsight and examine whether that which actually happened could have been expected in light of the facts surrounding the person involved and his action. When a particular stone could not have been expected to cause death in the case of murder, or when it could not have been expected to cause blindness in the case of injury, the court cannot impose liability on the offender.

 

In contrast, omed of the damage is carried out after the injury, and after we have already decided to impose liability upon the offender, and it tries to assess the scope of the damage that was caused. In the context of this omed, oftentimes a significant deviation from the omed, for better or for worse, does not indicate a surprising or unexpected situation. For example, when an assessor comes to assess how many days of lost work the injury will cause, and he gives an assessment of 60 days, the assessor knows that the victim may be able to return to work after 50 days and that it is possible that the recovery period will last 70 days, and he tries to give a reasonable number in the middle. If, indeed, the recovery period will last two years, we would be dealing with an unexpected development, but generally speaking this is not the case.

 

            With respect to the reasoning as well, we seem to be dealing with two entirely different principles. Omed of the action is a Torah law based on a derivation from a verse, and it relates to the offender's level of responsibility for what happened, whether because of the causal connection between his action and the result, or because of ones, or because of a certain combination of the two as explained above.

 

Omed of the damage, in contrast, is a Rabbinic enactment or a prevalent court practice with respect to the obligation to carry it out, and when it is carried out it is not clear whether it bears the force of a Torah law or a Rabbinic enactment. The reasons to prefer such a mechanism and grant it validity are varied, but essentially they relate to the advantages of issuing a fixed and final verdict that does not require the parties to return to the court to receive an updated ruling. There is here a certain deficiency with respect to the truth. The ruling would be more precise were we to wait for the final calculation of the actual damage. On the other hand there is the advantage of the efficiency of the process and the positive incentive that it gives the victim to do whatever he can do to assist in his recovery, as opposed to the negative incentive that he would be given were he able to demand more compensation if his recovery process is extended. As Rabbeinu Yehonatan proposes in the Shita Mekubbetzet (ad loc.), an extended assessment would also open the door to fraud, and so omed also serves the cause of truth:

 

Because if the court does not assess how many days he will be bedridden, sometimes the victim with a wound with respect to which he could walk on his staff will feign and say that he cannot yet walk on his feet, and it will turn out that you cause the offender an undue loss.

 

            It should be noted that the Rambam (Hilkhot Chovel u-Mazik 2:16) understands that the law of omed was instituted for the benefit of the person who caused the injury, and so he can choose whether or not to ask the court to conduct an omed.[2] The Sema (420, no. 21) proposes two explanations of this approach: The first is not to give the victim an incentive not to properly invest in his recuperation, as was explained above. This may indeed explain the Rambam who saw in omed an enactment instituted for the benefit of the offender. But it seems that this consideration explains the enactment of omed not only as an enactment instituted for the benefit of the offender, but also out of a desire to keep things moving in the best and most efficient manner in general, and even out of concern for the benefit of the victim.

 

The second explanation proposed by the Sema is that oftentimes the recovery process drags out longer than had been expected, and in such cases the offender gains from the omed. Even though there are times that just the opposite happens, that the recovery process is quicker than had been expected, and it turns out that the offender loses because of the omed, such situations are relatively rare, and therefore we are dealing with an enactment for the benefit of the offender (for further explanation, see Arukh ha-Shulchan, no. 23). If this argument is correct factually, it explains why omed is an enactment for the benefit of the offender, but it points to a problematic failure in the methodology of those who perform the assessment (a failure that stems from the psychological inclination towards excessive optimism, from failure to make use of statistics, and from failure to draw conclusions). This failure leads to a sharp impairment of the exactitude of the omed, and makes it difficult for us to understand why we would institute an enactment that is so in favor of the offender (unless the first factor is what underlies the enactment, and this deficiency merely explains why this is an enactment that favors the person who caused the injury). In any event, by logic, we are not forced to say that we are dealing with an enactment that favors the offender.

 

            At any rate, there are weighty advantages to determining payments for the injury based on a single and final omed, and not in an ongoing fashion. As stated above, these advantages seem to underlie the law of omed, and there is no connection between it and the omed conducted with respect to the instrument and the action that caused the damage. But is this the impression that emerges from our passage? At the objection stage it is clear that the Gemara did not share this understanding, for it proves from the law of omed regarding the damage that there exists a law of omed regarding the action. But now we come to the distinction: "That an omed has to be made of the length of the illness likely to result from the wound has never been questioned by us, for it is certain that we would have to make such an estimation; the point that was doubtful to us was whether we estimate if the instrument was one likely to do that damage or not." But the wording of the distinction does not imply that we are dealing with totally different principles. Rather it seems that we are dealing with an internal distinction within the concept of omed that determines whether or not the damage is an expected consequence of the action: The Gemara says that we certainly assess the victim in accordance with his condition after the injury, what damage is expected to follow and what not; but there is still room to ask whether we also examine the object that caused the injury (and we once again cite the words of Rashi, even though we did not fully understand them: "Because sometimes damage is caused with anything").

 

            The continuation of the passage also strengthens the connection between the two types of omed. The passage considers the law that states that if the victim recovered sooner than had been expected, he is entitled to receive the full amount that he had been assessed. This law certainly does not stem from a deficiency in the responsibility of the offender for the damage that was caused, for it deals with damage that had not been done. By logic, we might have thought that this law illustrates the difference between these two types of omed, and it stems from the aforementioned desire to award a sum that is fixed from the beginning and seals the discussion, leaving the victim to deal with his situation in the best possible manner, knowing that he will keep the sum awarded to him in any case (for it is clear that if the victim knows that in the event of a quick recovery he will have to waive part of the compensation, he will make every effort to ensure that the recovery process not be quick, or at least not look that way). However, the passage has to come up with a special explanation for this law:

 

The Master said: "So also, if after the estimation was made he recovered rapidly, payment will be made of the whole sum estimated." This appears to support the view of Rava. For Rava said: An injured person whose illness was estimated to last the whole day but who, as it happened, recovered in the middle of the day and performed his usual work, would still be paid for the whole day, as the unexpected recovery was an act of mercy especially bestowed upon him from Heaven.

 

            The Gemara does not stop with the determination that the estimate is final both in a case of a change for the better and in a case of a change for the worse. The passage implies that the finality in the case of a change for the worse is understandable in light of the principles governing omed of the action, but as for a change for the better a special rationale is necessary: "An act of mercy was especially bestowed upon him from Heaven." This rationale is difficult to understand, and we will examine it below, but the very need for it demonstrates that the law of omed regarding the damage as it relates to a change for the worse is not detached from the law of omed regarding the object, and therefore it does not provide an explanation for the case of a change for the better.

 

            Is the law of omed regarding the damage really detached from the considerations raised above (the finality and efficiency of the process, guaranteed payment to the victim, prevention of fraud and prevention of a negative incentive for the victim to recover)? It is difficult to say this, for these explanations are based on the words of the Rishonim on our passage. In my opinion, there is no doubt that these considerations underlie the decision to conduct an omed, rather than some other mechanism, involving an extended examination of the damage. However, Chazal were of the opinion that they do not suffice to justify giving force to the omed when it is clear that the actual situation differs essentially from the initial assessment. When we are dealing with a turn for the worse in the victim's condition, we deny his right to compensation for the damage that the offender caused him, and even if technically speaking, the law stating that what the court declares ownerless is ownerless would suffice for this, Chazal maintained that for this the utilitarian considerations such as those mentioned above are not enough. Therefore they based the validity of the omed of the damage on the model of the omed of the implement and the action. That is to say, we are dealing with a determination that a certain range of damage – as it was determined in the framework of the omed conducted after the injury – is what is expected to be caused as a result of the injury, and damage that exceeds this is not in the realm of the responsibility of the offender, based on the rationales that we saw above (a severance of the causal connection, ones, or a combination of the two).

 

Of course, the application in the case of omed of the damage is not at all simple, for we are not dealing with damage that could not have been expected. As I emphasized above, when an assessor comes to assess the damage, he knows very well that the recovery period could be longer or shorter, and he determines a reasonable assessment located somewhere in the middle. Therefore, a certain deviation from the omed for the worse does not constitute any real surprise. But nevertheless, Chazal gave force to the omed conducted by the court as a halakhic mechanism that determines the expected range of damage, in such a way that a deviation should be considered an unexpected surprise. Based on this we must discuss the halakhic significance of such a surprise, for the better or for the worse.

 

            When we are dealing with a change for the worse, the parameter is that with which we are already familiar – damage that was not expected to occur in the normal way of the world, similar to an omed of the instrument and the action. There is a certain difficulty here, since the Gemara says that omed of the damage is something obvious, whereas omed of the instrument and the action in cases of damage is subject to uncertainty, even though omed of the damage negates liability for damages that are far more expected than those negated by an omed of the instrument and the action. It stands to reason that despite the fact that the decision to give force to the omed of damage rests on a more fictitious mechanism, the utilitarian rationales for activating it define it as obvious[3].

 

            In a case where the change was for the better, the regular law of omed does not provide an answer for the difficulty – how do we impose liability on the offender for damage that was not caused. Therefore, the Gemara needs to introduce a new principle: "As the unexpected recovery was an act of mercy especially bestowed upon him from Heaven." This means that the offender on his part caused the damage as was assessed, and the turn for the better that took place stemmed from Heaven's mercy for the victim (see and compare to the passage dealing with Heaven's mercy, below p. 116a).

 

On the face of it, it is very difficult to understand this explanation. A person who causes damage is not liable to pay for having done something dangerous, but rather for the actual damage that he caused his victim; and if there was no damage – even if only because of Heaven's mercy – why should the offender be liable? Consider the following: Had Reuven set fire to Shimon's field on a hot summer day, and the court with its assessors happened to have met and established with certainty that the field would be destroyed and that Reuven would be liable for the damage, and then suddenly a downpour began and put the fire out before it spread – without a doubt we are dealing with a surprising and unexpected development and a clear instance of Heaven's mercy. But could we entertain the possibility that Reuven should be liable to pay the value of the burnt field, when in the end it was not burnt down?

 

            The distinction seems to be clear. In the case of the field, the damage did not yet occur,[4] and liability cannot be imposed for damage that was not caused. But as for the liability of the person who caused an injury, including the payments for loss of employment and healing that are discussed in our passage, there is room to say that the payment is for the damage that was caused at the time of the injury. Indeed, we suggested in the past that from the wording of the Rambam (Hilkhot Chovel u-Mazik 5:7) it is possible to understand that the damage to which these payments relate is the monetary loss that occurs at a later stage: "For if he does not reimburse the injured person for them, he will have caused him to forfeit the money he spent on medical treatment and the money he lost through unemployment."

 

However, we have seen that there is much support for an alternative understanding, according to which the liability for loss of employment is not for the loss of earnings, but for the impairment of the victim's ability to earn, and that the liability for healing is not for the money paid to the doctor, but for the very injury to the body, only that the liability arising from this injury is not only compensation for the decrease in value of the body, but also an obligation to see to the victim's healing.[5] What happens when an assessment is made of the damage? As we have already seen, Chazal gave force to this assessment as establishing the scope of the damage that can be expected to be caused by the injury, this being both for leniency and for stringency. When there is a surprise for the worse, we see this as unexpected damage for which there is no liability. In contrast, when the surprise is for the better, it means that the injury that was caused was indeed of the scope that was assessed. If, for example, it was assessed that the victim would be out of commission for fifty days, it means that the offender impaired his earning power for fifty days. The fact that the victim recovered earlier than had been expected does not teach us that the injury was less severe than had been assessed, but only that the victim enjoyed greater success than had been expected considering his impaired work ability, and because of the strength of his will and the mercy of Heaven. We are dealing with a happy development, but one that does not reduce the scope of the damage caused by the offender.

 

            The combination of these two halakhic mechanisms, the absence of liability for unexpected damage, on the one hand, and a quantification of the damage based on an assessment without considering the mercy of Heaven, on the other, leads to the result that the omed of damage indeed determines the final amount for better or for worse, and in this way realizes the many advantages of a final and one-time payment. We are not left with an uncomfortable feeling that there is liability for damage that was not caused or a denial of eligibility for compensation for damage for which the offender is responsible. What we have here is an interesting combination of a formal halakhic mechanism and various utilitarian objectives, a combination that characterizes the operational methods of Halakha in many contexts.

 

(Translated by David Strauss)

 

Sources For the next Shiur – Bava Kama 27

 

The incident involving the woman and the oil, and the prohibition to inflict an injury upopn oneself

 

            Next week we will complete the mishna on p. 90a-90b. We will see the incident involving the person who uncovered the head of a woman, and we will study the Gemara dealing with this incident and with the law governing one who inflicts an injury upon himself, from p. 91a, "shamra omedet" until p. 91b, "al achat kama ve-kama." See also Tosafot, s.v. ha-chovel; ela I; ela II [if you have time also ela III].

 

1) What is Rabbi Akiva's answer to the person who uncovered the woman's head, according to the mishna and according to the baraita cited in the Gemara? What is the relationship between their disagreement and the earlier disagreement between Rabbi Akiva and the first Tanna?

 

2) Our passage records a dispute regarding the prohibition to inflict an injury upon oneself. Among the Rishonim, the Rama in the Shita Mekubbetzet, ad loc., and the Tur, 420, rule that self-injury is permitted, whereas most Rishonim forbid it. Are we dealing with a Torah prohibition, and what is the relationship between it and the prohibition to cause an injury to another person? Consider the various sources suggested by the Gemara. See Rambam, Hilkhot De'ot 3:1, and Hilkhot Chovel u-Mazik 5:1, 3. What is the relationship between causing an injury and striking?

, full_html