Compensation for Pain Caused (84b-85a)

 

I. rEIMBURSEMENT FOR pAIN

 

            One of the five payments falling upon one who caused an injury to another person is compensation for the tza’ar (pain) suffered by the injured party. The Rishonim disagree whether there is liability only for the tza’ar experienced at the time of the injury,[1] or also for the tza’ar felt later,[2] but in any event the payment is for the tza’ar suffered by the injured party. This is an exceptional liability in the world of damages, as it relates to damage that is not monetary and therefore generally not recognized as damage. As part of the increased responsibility that is cast upon a person who intentionally injures another person (and only when all three of these conditions are met: a person causes the injury, a person suffers the injury, and the injury is inflicted intentionally), the Torah imposes upon him the obligation to offer reimbursement even for tza’ar.

 

            According to the Rambam (Hilkhot Chovel u-Mazik 5:6) that we saw in the previous shiur, this obligation is a kenas (penalty), so that if the person who caused the injury admits to it, he is exempt. On the other hand, according to the Ra'avad (ad loc.) and the Ramban (Shevuot 46b), this is a chiyuv mamon (monetary obligation).[3] On the face of it, it is easier to understand the Rambam's position, as we are dealing with damage that is not monetary. It stands to reason that according to the Ra'avad and the Ramban, the damage need not be monetary in nature in order to obligate reimbursement as a chiyuv mamon. This is indeed a novelty that applies only in specific circumstances, but when it applies, it reimburses a person for the damage inflicted upon his comfort and well-being. When I am in pain, I am less happy with my life, just as a monetary loss causes me to be less happy with my life, and this justifies reimbursement. The difference lies in the fact that with respect to monetary damage the financial reimbursement is more similar to that which was damaged. Payment for tz’ar attempts to reimburse with money for non-monetary damage, and therefore the measure of correspondence is lower. Perhaps this is the reason that, according to the Rambam, we are dealing with a kenas. But as we shall see below, the issue of reimbursement for tza’ar tries to offer a monetary translation to the non-monetary impairment of a person's well-being, and therefore in the end it is logical to see the payment, not as a punishment, but as a responsibility – albeit a novel one – to compensate for the impairment that was caused.

 

II. Pain wheN there is derpreciation resulting from the injury, and pain wheN there is no depreciation resulting from the injury

 

            The Gemara on p. 84b suggests that Rabbi Yehuda HaNasi and Ben Azzai disagree about whether there is liability for tza’ar even when there is no injury, i.e., when there is no depreciation resulting from the injury.[4] At the end of the passage (p.85a, top) it says that even according to the one who says that reimbursement must be made for tza’ar, even when there is no depreciation resulting from the injury, there is a payment of "additional money" for tza’ar when there is depreciation resulting from the injury. That passage implies that it is easier to understand liability for tza’ar when there is also depreciation as a result of the injury. On the other hand, the Gemara at the end of p. 85a notes that Rava has a special derivation to learn that there is liability even when there is depreciation resulting from the damage, implying that when there is depreciation, it is more difficult to impose liability for tza’ar.[5]

 

            The Tosafot (26b, s.v. hai) were troubled by this contradiction, and therefore suggest that the two passages are dealing with different circumstances. In their view, all agree that there can be liability for pain even when there is no liability for the injury, i.e., when there is no depreciation in value of the injured party were he to be sold as a slave in the market. The dispute on p. 84b is whether liability for tza’ar is conditioned on there being some mark left on the body, even if there is no monetary damage. What is the rationale for demanding some physical mark on the body? The Tosafot don't explain this, but the Tosafot on p. 85a (s.v. le-damim) explain the aforementioned Gemara regarding "additional money" for tza’ar when there is liability for injury in accordance with their position on p. 26b:

 

For the additional money that he pays for tza’ar accompanied by a mark over tza’ar not accompanied by a mark. Even though there is no additional tza’ar, he pays more because the mark aggravates the ill-feeling.

 

I am not sure that I fully understand what the Tosafot mean, but it is possible that they understand that the liability for tza’ar does not relate only to the physical pain, but to all the negative feelings – apart from the separate factor of boshet – that arise in the wake of the physical injury, and these are greater when the wound leaves a mark. Therefore there is an opinion that only when there is such a mark is there liability, and even according to the other view, when there is a mark, the liability is greater.

 

            Rashi, in any event, disagrees with the Tosafot on p. 26b, for he explains in our passage that what is absent in a case of "pain without injury" is that there is no depreciation in value, and the implication is that the reference is to a chiyuv mamon based on the law of injury. It is possible that in his view there is a position that only an injury that imposes liability for depreciation in value is a monetary event to which can be added liability that is exceptional in the world of damage, like tza’ar. But the matter requires further study. [It should be noted that Rashi writes (s.v. keviya): "Since he pays for healing because of 'wound,' so too he pays for tza’ar." It seems[6] that even though with a burn there is usually no depreciation in value on the slave market, healing is also a monetary damage because of which the tza’ar is regarded as tza’ar where there is injury.]

 

            As for a case of tza’ar when there is depreciation resulting from the injury, an additional source was needed to teach us that there is liability. What is the rationale for exempting from liability for tza’ar, precisely because there is liability for the depreciation resulting from the injury? Rashi in his commentary to the Torah suggests an interesting idea:

 

This passage is apparently redundant, but our Rabbis explained in chapter Ha-Chovel that Scripture intends by this to make one liable to pay for pain inflicted even in a case when one has already paid damages for decrease in one's value – that although he has paid him the value of his hand, we do not exempt him from paying also for the pain afflicted, arguing thus: Since he has purchased his hand by paying its value, he was entitled to cut it off by whatever means he pleases. Rather we say that he ought to have removed it by means of a drug, when he would not have suffered so much tza’ar. He, however, cut if off by means of an iron instrument, and caused him great tza’ar. (Shemot 21:25)

 

            The Meiri writes in similar fashion (26b):

 

When his hand was cut off, even though he acquired it with the payment made for decrease in value, so that he may cut it off, nevertheless he pays for the difference in pain between cutting it off with a knife, and cutting it off with a drug that kills the flesh.

 

Rashi and the Meiri use an interesting, but not entirely clear formulation, that the payment made for decrease in value involves sort of an acquisition of the injured part of the body (the hand itself belongs, of course, to the injured party; the reference is merely to the part that no longer exists – the impairment of the attached hand).[7] Nevertheless the fact that a person becomes liable to reimburse the injured party for the decrease in his value gives him the right to cut off the hand, and this of necessity involves a measure of tza’ar, and therefore there is reason to say that he should not be liable for tza’ar. In their view, this argument remains in place even according to the conclusion, but what is new is that even though he is permitted to cut off the hand, there is a separate question regarding the way in which it must be cut off, and it is the addition of unnecessary pain that obligates payment for tza’ar. This is the way that Rashi explains the passage of " tza’ar when there is injury – how do we assess it" on p. 85a, that the difficulty lies in the assessment of the extra pain that is beyond what is "necessary" for cutting off the hand.[8] This leads us to the issue that will occupy us through the rest of this shiur – assessment of tza’ar.

 

III. Assessing the value of the pain

 

 

 

Now that we understand that monetary reimbursement is necessary even for damage that is not monetary, we are faced with a much more difficult challenge, namely, how to monetarily assess damage that is not monetary. Since we do not have a calculator similar to the one in the ad in the attached picture, we have no alternative but to adopt principles that are a little more fluid. Even when we assess the decrease in value of a monetary asset by way of assessors, the assessment is not absolutely precise and mathematical, as is attested to by the passage in Bava Batra 107a that deals with disputes between assessors. Clearly, however, when the mission is to monetarily assess damage that is not monetary, the lack of clarity and the fluidity rises. In my opinion, it is clear that even the outcome that the court will eventually reach cannot precisely reflect the tza’ar suffered by the injured party, but this does not exempt the court from fulfilling to the best of its ability the Torah's desire that compensation be made for tza’ar.

 

Here the mishna presents the guiding principle in such cases: "We calculate how much a man of equal standing would require to be paid to undergo such pain." Before we examine how this principle is applied, it should be noted that we are dealing here with a mechanism of assessment that is different from that with which we are familiar. We are accustomed to think that the assessment of damage examines the decrease in value of the property (which, of course, is irrelevant in the case of tza’ar), whereas here we encounter an assessment that asks in exchange for what sum of money would a person agree to have something done to him that had already been done to him against his will. This assessment transforms the event that occurred against the injured party's will into sort of an imaginary free-will deal, in which the injured party freely decided in exchange for what sum of money he would be willing to suffer the pain in question. Let us call this "assessing the price of acquiring consent."

 

What is the relationship between these two assessments? Was there room to activate assessment of the price of acquiring consent also in the regular case of damage? That is to say, when Reuven destroys Shimon's table, is there room to examine in exchange for what sum of money would Shimon agree to have his table destroyed? In the case of a new table, which has no sentimental value, and regarding which there are many just like it in the market, and the situation is that it is possible to sell a used table at full price when it is new – the sums that the two assessments would yield should be very close in value. They are not identical, because the person being asked to agree to the damage would calculate into his asking price the effort to go and buy a new table, and this amount is not part of the market value of the table. So too, in order for a person to agree to the deal, it is not enough that he be indifferent to it, i.e., that the proposed sum be equal to what he has in his hand, but rather the deal has to provide him with some benefit, if only a small one (though it is possible that also when the mishna deals with assessment of the price of gaining the victim's consent, the assessment does not include the small extra amount that the person demands in order to pass over from indifference to interest). These differences, however, are relatively minor.

 

However, if the situation is slightly different, it turns out that there is a large disparity between the assessments. When – as in our time – there is no serious market for second-hand items, there is certainly a wide gap between the low amount of the market value and the assessment of the price of acquiring consent, for a person would only agree in exchange for a sum that would allow him to purchase a new table. Indeed, there are posekim who maintain that the market value of a damaged product is not the exclusive guiding principle for assessing damage, and in such a situation the person who caused the damage must pay the market value of a new product. The situation becomes much more complicated when the damaged item has sentimental value, a factor that significantly expands the disparity between the market value and the assessment of price of acquiring consent. Without deciding the proper assessment in this complicated situation, it may be said that using the market value is most appropriate in situations when the damage is objective.[9]

 

In the case of pain, it is clear as stated above that assessment of the decrease in value is impossible. What is the meaning of assessing the price of acquiring consent and the imaginary deal that accompanies it? Someone who understands in their plain sense the words of Rashi on the mishna regarding injury, "For surely he caused him damage and a monetary loss, for had he been in need, he would have sold himself as a Jewish slave," can say that here too the person who caused the injury hurt the injured party in that he did not offer him this strange deal. In last week's shiur, however, we explained that even payment for injury should not be understood in this manner, and certainly not tza’ar. But it may be argued that when we are dealing with subjective injury, like tza’ar, the logical replacement of market-value assessment is assessment of the price of acquiring the consent of the specific person standing before us. If we give him the sum that would satisfy him, we fix the damage in the best possible manner from his perspective. According to this, our wish is to know the sum in exchange for which he personally would agree. Of course, we cannot ask him and believe him, for he will propose an exaggerated figure, and therefore we try to estimate it.

 

To put it differently, and in my opinion, more precisely, since the compensation is for injury to the person's well-being, this injury must be assessed, and the assessment is sort of a market value – in accordance with the sum in exchange for which a normal person in the situation of the injured party would be prepared to suffer such an injury. According to this, when the mishna clarifies that we don't ask the injured party how much he would demand, but rather "we calculate how much a man of equal standing would require to be paid to undergo such pain," it is not only because we can't believe the injured party regarding the sum that he proposes, but because the truth is that we are not interested in the sum in exchange for which he personally would agree to the injury. This amount is the tool that we have to assess the injury to the person's well-being, and the assessment must be objective – "a man of equal standing."

 

In any event, how do "we calculate how much a man of equal standing would require to be paid to undergo such pain?" The Yerushalmi addresses this question, saying that we find an (one!) appropriate person, ask him in exchange for what sum he would be prepared to undergo such pain, and his answer decides the manner! We are dealing with a cheap and simple mechanism, but if our aspiration is to reach an objective assessment of the value of the injury to the victim's well-being, it would seem that we have not achieved very much more than finding the subjective assessment of one person. The matter requires further study.

 

Another question that I find exceedingly troubling is what is "a person of his standing?" Rashi on the mishna explains: "The more tender the person the greater his distress and pain." This illustrates the subjective aspect of tza’ar, but there is nothing wrong with this – different people suffer differently, and this justifies differential compensation. The great difficulty is the additional criterion, proposed by the Rambam: "It all depends on the nature of the injured party. There are certain people who are delicate, spoiled and wealthy, and would not bear even a slight amount of pain for a large amount of money. And there are people who are heavy laborers, strong and poor, and will bear much suffering for a single zuz. These are the factors that are taken into consideration when evaluating and determining the compensation for tza’ar." Alongside the criterion mentioned by Rashi, the Rambam adds the economic situation of the injured party – a rich man would not agree to bear the pain even in exchange for a great sum of money, whereas a poor man would agree even in exchange for a paltry amount, and all this is part of "a person of his standing."

 

On the face of it, we are dealing with an outrageous distinction. Beyond the discrimination created between a poor victim and a rich one, it would appear that there is an injustice here. Surely it stands to reason that if the tza’ar is the same, the compensation should be the same. On the other hand, if the mechanism is connected to readiness to spend or readiness to suffer in exchange for money, weight should certainly be given to the financial situation of the injured party.

 

In principle it may be suggested that Rashi disagrees with the Rambam and does not recognize a financial criterion, because the assessment mechanism of the Mishna does not reflect the nature of the assessment, which is an assessment of the injury to the person's well-being. Therefore, the financial capabilities of the injured party are irrelevant. But according to this we must build the assessment mechanism on a person of average financial capabilities, but there is no basis for this in the Talmudic passages. The matter requires further study.[10]

 

IV. Assessment of Pain wheN there is injury (85a)

 

As stated above, the objective of compensation for tza’ar when there is depreciation resulting from injury, at least according to Rashi, is not to compensate for all the pain, but only the pain that exceeds the pain that must necessarily be suffered when a hand is amputated. On the face of it, it would seem that today this should be calculated in accordance with the amount in exchange for which a person would be willing to waive (or the reverse, as we shall see below) anesthesia. And note – I refer not to the market value of anesthesia, because this price may be very low in relation to the pain caused to the person by amputation without anesthesia. Rather I refer to the sum in exchange for which a person would be willing to waive the anesthesia, or the sum that he would be ready to pay for it when anesthesia is being withheld from him and the market conditions are irrelevant.

 

In any event, during the days of Chazal there was no anesthesia as there is today. This is an interesting phenomenon, that medical progress may increase the damage payment that a person who causes an injury must pay in the context of payment for pain and healing, but we shall not expand upon this point here. The Talmud refers to the possibility of performing the amputation with a drug. It would seem that the reference is to a type of anesthetic available in their day that presumably did not completely eliminate the pain, and therefore the amount that one would pay for it does not reflect all the pain involved in the amputation.[11] However, we can see from the wording of the Gemara, Rashi and the Rambam that we are dealing with a drug that substitutes for the knife, that removes the limb in one way or another (see Nishmat Avraham, an important work on Halakha and medicine, on Choshen Mishpat 420:3, who discusses this, and adds: "This is astonishing"). Rashi on our passage writes that with such a drug there is no pain at all (again the matter requires further study whether this should be taken literally, and whether this applies also to the pain that is felt after the amputation).

 

Let us now examine the words of the Gemara about using this drug:

 

But how is pain assessed in a case when depreciation as a result of the injury [also has to be paid]? … It must therefore mean that we estimate how much a man whose arm had by a written decree of the Government to be taken off by means of a drug would require that it should be cut off by means of a sword. But I might say that even in such a case no man would take anything [at all] to hurt himself [so much]? It must therefore mean that we have to estimate how much a man whose arm had by a written decree of the Government to be cut off by means of a sword would be prepared to pay that it might be taken off by means of a drug.

 

The Gemara rejects the first option on the grounds that "no man would take anything at all to hurt himself so much." In my opinion, this does not mean that a person would not agree to waive the drug in exchange for all the money in the world. When a person is very needy of money and a large sum is offered him, it is possible that he would agree to suffer the terrible pain of the amputation of his hand by way of a sword. However, this is an unreasonable sum, which does not reflect the injury to the person's well-being caused by the pain. In addition, this amount also imposes an unreasonable burden on the person who caused the injury, and we have seen that this too is a consideration in determining the assessment of damages. Both of these arguments are raised in the words of the Rosh in sec. 1: He mentions the derivation from the words, "and shall feed in another man's field," which teaches us to be lenient when assessing damage. Alongside this he explains that there is no correlation between the sum that will emerge from such an assessment and the actual injury: "For a person would only agree from the outset to suffer pain in exchange for a large sum of money, but this pain had already been afflicted."[12] That is to say, we wish to assess the injury to his well-being that already happened, and the translation into a free-will transaction is merely a fiction trying to help us calculate the injury to his well-being. When the virtual deal is infected by a market failure that inflates the price (since we are dealing with a type of damage that a person would have great difficulty deciding to accept upon himself), the resulting sum would not fit the injury that was already caused.

 

Here enters the Gemara and proposes a distinction between two situations, a distinction known in economic lingo as a distinction between "willingness to pay," i.e., how much a person would be willing to pay for something, and "willingness to accept," i.e., how much a person would be willing to accept something.[13] At first glance, this distinction is very strange. After all, we are concerned with the value that people attribute to the difference between amputation with the drug and amputation with a sword. Why is there a difference between the price for substituting a drug for a sword and the price for substituting a sword for a drug. After all, the distance between point A and point B is the same whether you start from point A or you start from point B!

 

It seems to me that it is possible to offer two explanations for this distinction, both of which illustrate the difficulties inherent in the assessment of the price of acquiring consent:

 

1. We have already noted that this assessment is influenced by the financial situation of the injured party. This is true both when assessing "how much a person is willing to pay" and when assessing "how much a person is willing to accept." In the first case, it depends on the injured party's economic ability to spend money for a desired result, and in the second case, it depends on the degree to which he is desperately in need of the money offered in exchange for his waiver. Nevertheless, there is a real difference between the two, for a person is more capable of not agreeing to the waiver in exchange for money than he is capable of spending money when he doesn't have it. When we are dealing with a waiver that seems almost imaginary to the Gemara – a willing waiver of painless amputation with the drug – this finds strong expression. A person would not agree to waive amputation with a drug for any reasonable sum, but his ability to pay money for the drug is limited in accordance with his means, and this will yield a more reasonable sum when assessing the damage of pain.

 

2. The second explanation is based on a principle of behavioral economics developed by the psychologists Amos Twersky and Daniel Kahneman, earning them a Nobel Prize in economics. For our purposes, let us say in brief that they demonstrated that the average person evaluates well-being not in absolute, but rather in relative terms, and the starting point is a most significant consideration that distinguishes between profits and avoiding losses. A loss that a person suffers from what he sees as his starting point is perceived by him as a much greater loss than a missed opportunity to make a profit and rise up from his starting point. Applying this idea to the Gemara under discussion, there is a significant difference between a person for whom it is a given that his hand will be cut off with a drug and he is offered the option to exchange this with a painful sword, something that for him would be a great blow, and something very difficult to agree to in exchange for money; and a person for whom it is a given that his hand will be cut off with a sword, and he is offered the possibility of improving his situation and replacing the sword with a drug – this is an appealing option, but only an improvement in the situation, and the amount he would be willing to invest in this will be relatively limited. Were the Gemara based on the theory of Kahneman and Twersky, it would be possible to say that the amount "how much a person is willing to accept" is about 2.25 times the amount "how much a person is willing to give." But there is no need for this – if suffices that that even if we understand the matter as was suggested above, that there exists a sum in exchange for which the injured party would be willing to waive the drug, there is a significant disparity between the two amounts, and the amount that more reasonably reflects the value of the pain when payment is also made for the injury is "how much a person is willing to pay."

 

To summarize: Assessing compensation for pain involves various difficulties that stem from difficulties in evaluation, from irrelevant economic influences, and from irrational psychological biases. The court's mission is to reach the most correct assessment possible despite all these difficulties. This assessment will not accord precisely with the degree of injury caused to the person's well-being, but this should not discourage judges from attempting to do their best. "It is not incumbent upon you to complete the work, but neither are you at liberty to desist from it" (Avot 2:21).

 

(Translated by David Strauss)

 

 

Sources for the next Shiur – Shiur 15

 

Payment for Healing

 

            In the next shiur, we will examine liability for ripuy (healing), i.e., reimbursing the injured party for his medical costs. Learn the Gemara until p. 85b, "de-rak lei be-apei," and see Hiddushei ha-Rashba (cited below).

           

            See again the Rambam that we have already seen, Hilkhot Chovel u-Mazik 5:6-7. Think about the Rambam's understanding of the foundation of the law of ripuy, and compare with the words of the Kovetz Shiurim, Ketubot, no. 218 (cited below).

 

Chiddushei Ha-Rashba, Bava Kama 85a:

 

"The wound may not be bandaged [by the injured party] too much, but even though the wound may not be damaged too much, even if he bandaged it too much, it is not absolute negligence, and since there is double mention in Scripture of healing, there is liability. This is not the case if we say that the wound many not be damaged at all, for then it would be absolute negligence, and it is impossible that Scripture would impose liability for healing a person who was absolutely negligent concerning himself."

 

Kovetz Shiurim, Ketubot, no. 218:

 

If one causes an injury to a non-Jewish slave, the payment for ripuy goes to the slave, for he needs it for healing; Gittin 12a. At first glance what difference does it make that he needs it for healing; in any event that which was acquired by a slave belongs to his master? It follows from this that liability for ripuy is not a chiyuv mamon, but rather he must actually heal him. And if he cannot heal him [himself] he must hire doctors. Since the injured party enjoys the right to be healed, the rule that what is acquired by a slave belongs to his master does not apply… It seems that if the person who caused the injury became liable for ripuy, and afterwards the injured party was killed, the person who caused the injury is not obligated to pay his heirs, and we don't say that the injured party already acquired the payment for his ripuy, as this is not a monetary right, but rather a right to demand of the person who caused the injury to heal him any way that he can…

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