Rambam - 3 Chapters a Day

In Hilchot Nizkei Mammon, the Rambam describes the laws governing damages and injuries caused by an individual’s property. In these halachot, the Rambam describes the damages caused by his physical person or his direct actions.

Making restitution in this manner is considered one of the Torah’s 613 mitzvot. See Sefer HaMitzvot (Positive Commandment 236) and Sefer HaChinuch (Mitzvah 49).

As explained in Hilchot Nizkei Mammon 8:10, if a person does not have resources at hand to pay for the injuries that he caused, his landed property may be sold. If he has landed property of several levels of quality, the property of the highest quality should be sold to pay this debt.

This includes also payment for any long-term loss of employment that results from the injury. For example, if the injured person was a painter and the arm with which he paints was injured, the fact that he could paint with that arm before the injury would cause his value to be increased. After the injury, he could not be sold at that price.

Mechilta D’Rashbi, commenting on the above verse; see also Bava Kama 83a.

And not that the person causing the injury should actually lose his own eye as punishment. (See Halachot 3 through 5.)

As mentioned above, this interpretation is taken from the Mechilta of Rabbi Shimon bar Yochai. The Rambam prefers it to the exegesis of the verse presented by Bava Kama 83a, because it endeavors to prove the meaning of the Biblical verse, while staying within its simple and obvious intent.

The term “halachah from Moses from Sinai” refers to laws that Moses communicated orally and that were continuously practiced by the Jewish people. (See the Introduction to the Rambam’s Commentary on the Mishnah.) Such laws have greater authority than the laws derived in the Talmud based on the exegesis of Biblical verses or even the apparent meaning of the Biblical verse itself.
What the Rambam is saying in these four halachot is that even though from an elementary reading of the Bible, one might come to the conclusion that “an eye for an eye” should be taken literally, a careful reading of the Torah does not allow for such an interpretation. Moreover, Jewish practice - which is the clearest indication of the Torah’s intent - has always been to make financial restitution.

I.e., that in addition to the damages that he caused the person, he must also make restitution for the pain that he caused.

Hilchot Na’arah Betulah 2:1 (based on Ketubot 39a) notes that the above verse uses the word “oppressed,” while Exodus 22:15, which describes the fine of the seducer, does not use this term. On this basis, it concludes that a rapist must also give recompense for the pain he caused his victim.
The Maggid Mishneh questions why the Rambam cites this teaching rather than the exegesis offered by Bava Kama 84a. The commentaries explain that the teaching cited by the Rambam relates much more closely to the literal meaning of the verse.

The Sifre and Bava Kama 28a interpret the latter phrase as also referring to financial restitution.

The example of a woman’s grabbing a man’s private parts is just an illustration of an activity that will cause embarrassment.

I.e., just as the woman’s act was motivated by conscious intent, so too, all others who cause embarrassment must have a conscious intent. The case cited serves as a paradigm, and the situation it describes sets the pattern for all other cases.

For example, if two people were sleeping under the same cover and one rolled over and pulled the blanket with him, exposing the other person’s body, the person who caused the embarrassment is not liable, for he did not act intentionally.

Mu’ad literally means “forewarned.” With regard to animals, the intent is that an animal is prone to perform such acts, and the owner should be forewarned. With regard to humans, similar concepts apply.

This is a lesson in ethics as well as in law. A person must always take responsibility for his conduct. He must realize the consequences and be willing to bear their burden.

There are, however, certain instances when damage is caused by a person’s actions, that the results are totally beyond his control, and therefore he is not held liable (Ramah, Choshen Mishpat 421:4).

One might think that when a person is asleep or drunk, he would not be held responsible, for he did not act with conscious intent. Nevertheless, since he intentionally went to sleep or became drunk, he is liable for the consequences of those acts.

A person who causes injury when asleep is held responsible, because when he lay down to sleep, he should have chosen a place where he would not cause damage. In this instance, the person who is sleeping should not be held responsible, for there is no way that he could have known that another person would lie down next to him, and that damage might have been caused.

He should have realized that the person who is sleeping might break it.

Because a person is responsible for his actions at all times, as stated in the previous halachah. He should have considered the possibility of an ordinary wind blowing and taken the necessary precautions.

For, as stated in Halachah 10, a person is not liable for causing embarrassment unless he did so intentionally. Although the person must accept responsibility for his actions, they cannot be considered intentional.

The decrease in the injured person’s value if he were sold as a slave, as stated in Halachah 2. He is also liable for any damages caused to property. Both are implied by the term nezek, which we have translated in these halachot as injury.

Rashi, Bava Kama 26a, explains that the passage that teaches us the obligations for these four assessments begins “When men quarrel...” (Exodus 21:22). Therefore, it is only when one’s actions resemble a quarrel - i.e., a purposeful act or a case of negligence that resembles a purposeful act - that one is held liable for them. The Maggid Mishneh makes the following distinction. With regard to an ordinary wind, the person is considered negligent in not taking the proper precautions, and he is therefore liable for all the assessments other than embarrassment. With regard to an exceptional wind, he is not considered negligent. On the other hand, this is not considered to have been totally beyond his control. Therefore, he is liable only for the injury. When something totally beyond his control takes place, he is not liable for the injury either. See Halachah 18 and notes.

Since he intended to fall on the other person, he is considered as having intended to injure him.

I.e., a far lesser amount, for the shame felt by a minor is far less than that felt by an adult. This is a further extension of the principle that one is not liable for embarrassment caused unintentionally. In this instance, the person acted intentionally; he was merely in error with regard to the person’s identity.

This is also a far lesser amount.

I.e., someone else put it in his garments without his knowledge.

As explained in Halachah 12 and notes, when a person causes damage unintentionally, but not negligently, he is obligated only for the injury he caused.

According to the Shulchan Aruch (Choshen Mishpat 421:7), this means if the owner intentionally injured him. If the owner causes injury unintentionally, he is not liable. Sefer Me’irat Einayim 421:12 states that the Shulchan Aruch is referring to an instance when the owner did not know that the intruder had entered. If he knew that he had entered and injured him unintentionally, he is liable.

The Shulchan Aruch (Choshen Mishpat 421:6) quotes an opinion that states that if a person apprehends an intruder, and the intruder refuses to leave after being ordered to do so, the owner may use force to compel him to leave, even if the intruder is injured in the process.

This rationale applies to both of the laws in this paragraph. Since the intruder has no permission to enter, the owner has no responsibility to him. Conversely, however, he is responsible for an injury that he causes.

E. g., a courtyard that was jointly owned, or an instance where the owner gave the guest permission to enter his domain.

E. g., they both entered a domain belonging to a third person without permission.

For the person who suffered the injury is considered negligent. If both had permission to be in the domain, the person who bumped into the other should have considered the possibility of the other person’s being there and taken precautions. If neither had permission to be in the domain, he is considered negligent for entering someone else’s domain without permission.

Since he did not intend to cause the damage, he is not liable for embarrassment, as stated in Halachah 10.

For it is not proper for a person to chop wood in the public domain.

For he should have taken care that his chopping not cause damage in the public domain.

For a carpenter should consider the possibility that people will enter his store.

See Hilchot Rotzeach Ush’mirat Nefesh, Chapter 3, which explains that, when a person slays a colleague, the murder weapon is evaluated to see if it is sufficient to cause death. If it is not sufficient, the murderer is released. He is not considered responsible for the deceased’s death, because his actions in and of themselves were not sufficient to cause death.

The Tur (Choshen Mishpat 420) states that the portion of the injured’s body where the injury took place is also taken into consideration. Would this article ordinarily cause an injury in such a place or not?

The commentaries cite this as an example of an injury that is caused by a factor beyond a person’s control, as mentioned by the Maggid Mishneh in his gloss on Halachah 12. Since the article with which the person struck him was not sufficient to cause injury, another factor, obviously beyond the person’s control, was the cause of the injury.

For he did strike the person intentionally, and his action resulted in the person’s embarrassment.

Sefer Me’irat Einayim 420:35 explains that this law is cited as support for the previous concept. Just as he is liable for the embarrassment caused by spitting, so too, is he liable for the embarrassment caused by a small article.

For embarrassment does not have to be accompanied by any actual injury.

“Accordingly” refers to the laws stated initially and not those mentioned with regard to embarrassment.

Chapter 5, Halachah 4.

This refers to a pointed metal object that can pierce the skin. A blunt metal object, by contrast, is evaluated in the same way as a wooden or stone object is evaluated [Maggid Mishneh; Shulchan Aruch (Choshen Mishpat 420:29)].

Sanhedrin 76b derives this concept as follows: With regard to a stone or wooden utensil, Numbers 35:17 mentions “a fist-sized stone” and Numbers 35:18 “a fist-sized wooden article” which our Sages interpret to mean that the utensil must be the size of a person’s hand. Otherwise, it is not of sufficient size to cause injury. With regard to an iron utensil, Numbers 35:16 does not mention “fist,” implying that even a smaller iron utensil is considered capable of causing injury.

For the injury he caused is considered to be totally beyond his control.

I.e., as the Rambam explains in the subsequent halachot, each type of injury is individual and requires payment according to the type of loss the injured person suffered. We do not say that since the person who caused the injury is not required to make all five payments, he need not make any at all.

The Ramah (Choshen Mishpat 420:3) states that included in medical treatment are any dietary supplements necessary for the person’s recovery.

I.e., there is no need to pay for damages, for there is no permanent injury.

I.e., there is no need to pay for damages, for there is no permanent injury. Nor is there a need to pay for unemployment, for one can work with a swollen head.

The Rambam’s source is the Jerusalem Talmud, Bava Kama 8:1, which states that the person delivered the blow b’lo ro’im. The Ra’avad interprets this phrase to mean “in a place where no one saw.” The commentaries explain that there is no fundamental disagreement between the two authorities, and each would accept the other’s view. Indeed, it is necessary for them to incorporate the other view. (See Shulchan Aruch, Choshen Mishpat 420:7; Sefer Me’irat Einayim 420:9.) The question is merely one of emphasis.

Since these portions of the body are covered, the blow did not cause him any embarrassment.

For the blow caused no damage whatsoever. It is, however, embarrassing to be struck in public.

The Maggid Mishneh explains that this also refers to a situation where the wound was inflicted in private, and thus no embarrassment was caused.

For his hair will not grow back, and this is a permanent loss.

That involve pain and require medical attention.

The Tur (Choshen Mishpat 420) interprets this as referring to a person who is trained in this skill, and not to people at large.

Sefer Me’irat Einayim 420:14 explains that the problem is not that he cannot shake his hair - because if so, payment for this would be included in nezek, the reimbursement for permanent damage. Instead, the intent is that he cannot shake his head at all - because of the pain. This is what prevents him from dancing.

And the person who caused the injury is therefore liable for pain and for the temporary loss of employment.

According to Shiurei Torah, a barleycorn is approximately one centimeter in length. Our translation follows the reading of the Shulchan Aruch (Choshen Mishpat 420:14), kase’orah. Others read the word as k’sa’arah, like a hair.

Since he did not touch him, he is considered an indirect cause of the injury (grama).

When a person causes a colleague to become deaf, he must pay his entire worth, as stated in Halachah 12.

Since physical contact was made, the attacker is considered a direct cause of the injury.

This phrase generally introduces a law for which the Rambam has no previous Rabbinic source, but rather has arrived at based on deductive reasoning.

I.e., with regard to payment for a loss of limb, there is no difference with regard to the nature of the individual. With regard to pain, by contrast, the individual’s personal tendencies are considered.

I.e., the previous halachah provides us with guidelines that apply whether or not a limb was lost. This halachah focuses on the loss of a limb.

That would not cause pain.

The decree of a king is mentioned because otherwise a person would never consent to losing one of his limbs.

In his Commentary on the Mishnah (Bechorot 4:6), the Rambam explains the meaning of this term:
I have heard many interpretations, and none of them are satisfactory.... This refers to a person who is capable and expert in his profession and thus worthy of earning a significant amount. [He] is not paid the sum given to such a worker, but rather that paid to an ordinary worker from this profession.... This is the intent of the phrase “like a worker of the trade in which he is employed.”
“Like an unemployed worker of the trade in which he is employed” implies [a further reduction], dependent on the amount of toil or rest involved in performing that profession. For example, there are certain tasks that require strenuous labor - e.g., iron workers or hewers of marble. If a worker in such a profession were given the chance of performing this labor or resting, he would prefer to rest, even though he would receive much less.
Thus, according to the Rambam’s conception, the injured person makes two waivers. He must forfeit the additional money that he would earn if he is more skillful than the ordinary person in his profession. He must also consider that he is resting and give up the amount of his wage that he would sacrifice in order to rest.
Rabbenu Chanan’el offers a different interpretation, explaining that this refers to a worker who is unemployed and would thus hire himself out for a lower wage than usual. This interpretation is also accepted by many of the other Sephardic authorities. The Tur (Choshen Mishpat 420) offers an interpretation similar to the Rambam’s.

The victim has already received compensation for his limb. Included in that was compensation for his loss of earnings. Thus, the unemployment assessment here refers to a lesser amount, work that he could have performed without the limb he lost.

See Halachah 15.

As mentioned in Chapter 1, Halachah 2, damages are evaluated by considering the victim as a servant being sold in the market place, and evaluating his value before the injury and his value afterwards. Once he has been made deaf, he would have no value, for no one would pay for a deaf servant.

As the Rambam continues to explain, a person inflicted several injuries upon a colleague without an assessment being made. Afterwards, he inflicted an injury upon him that was severe enough to require him to pay his entire worth.

The Maggid Mishneh explains that the person who caused the injury is freed of the obligation for damages and unemployment for the smaller claims, since they are included in the payment for his entire worth. He must nevertheless pay for medical bills, embarrassment and pain for each of the smaller injuries. This concept is clearly spelled out by Rabbenu Asher and the Tur, and quoted by the Ramah (Choshen Mishpat 420:26).

I.e., his entire worth after suffering the injuries, but not his entire worth before suffering the injuries (Maggid Mishneh).

This question is left unresolved by Bava Kama 85b. Therefore, because of the principle that money cannot be expropriated from the person in possession unless there is a certain claim against him, we do not expropriate the money from the person who caused the injury. By the same token, if the money is taken by the injured party, it should not be expropriated from him. For until it is established with certainty that the money does not rightfully belong to him, once it enters his possession, he is not required to give it up.
The Rambam’s opinion is quoted by the Shulchan Aruch (Choshen Mishpat 420:26). The Ramah cites the opinion of the Ramban and the Tur, who maintain that when a question of law is unresolved, and one party seizes the other’s property, the property that was seized must be returned.

The cost of the physician and any medication and treatment he requires.

As indicated by Halachah 17, this sum is not given to the injured party himself, but rather paid to the court, which will pay the bills for the injured party or pay directly to the physicians caring for him.

Our Sages gave the person who caused the injury this benefit lest the injured party intentionally prolong his illness, so that the person who caused the injury will be required to pay more. Although there are times when this enactment will work against the interests of the person who caused the injury - e.g., when the injured party recovers quickly - by and large it will be to his benefit.

For the same reason explained in the previous note.

And he therefore has the choice of accepting it or not.

I.e., the continuing effects of the injury. I.e., people will continue to refer to him as one who caused damage, because the injury will not be healed.

This law applies even if he is in fact a physician. For the person who was injured will not desire to be treated by the person who inflicted the injury (Bava Kama 85a).

In the latter instance, we tell him: “A person who works for nothing is worth nothing” (ibid.).

Despite the fact that if he had paid the initial assessment, he would not have been liable for this amount.

This is the version in the standard texts of the Mishneh Torah. It has aroused the objections of most commentaries and several - e.g., the Maggid Mishneh, the Migdal Oz and the Radbaz - maintain that it is a printing error. This is also reflected by a comparison to many authoritative manuscripts and the Rambam’s Commentary on the Mishnah (Bava Kama 8:1), which states that if a new ailment affects the injured person, the one who caused the injury is not liable.
In his Kessef Mishneh, Rav Yosef Karo offers some justification for the version of the standard text. Nevertheless, in his Shulchan Aruch (Choshen Mishpat 420:19), he rules that the person who caused the injury is not liable for these expenses.

He is not liable for the unemployment (or for the medical expenses, according to the above opinions) because this infection did not come about as a result of his actions.

Since the aggravation of the injury came about because of the injured person’s negligence.

Such a respite is granted for the payment of certain obligations. In this instance, however, even if he cannot receive a proper price for his property, he must sell it immediately and pay for the damages he caused.

Sefer Me’irat Einayim 420:31 emphasizes that this law applies only with regard to instances where the person caused embarrassment alone. If he caused embarrassment together with injury, since he must pay the other assessments immediately, he must also pay for the embarrassment at that time.
Sefer Me’irat Einayim also states that the same principle should apply when the person caused his victim only pain, but no financial loss. The Rambam does not mention this law, because it is not explicitly stated in the Talmud.

A person will be severely shamed when a person of an ignoble character publicly embarrasses him.

Since the person is not embarrassed by walking naked in the view of others, there is no way he could be caused further embarrassment.
Rashi (Bava Kama 86b) explains that this refers to all forms of embarrassment. Tosafot differs and states that if one spits at or hits a person who is naked or who is in a bathhouse, one is liable for causing embarrassment. For this form of embarrassment has nothing to do with whether the person is clothed or not. See Sefer Me’irat Einayim 420:41 for a discussion of this issue.
The Sefer Me’irat Einayim offers the interpretation of the phrase “A person who is naked has no embarrassment,” as meaning that there is no need to pay for the embarrassment of a person who walks naked in the street, for such a person has no sense of shame. According to this view, one is liable for embarrassing a person who is naked in a bathhouse.

Obviously, a far lesser payment must be made to the person who was partially unclothed than to one who was fully clothed.

In this instance as well, a far lesser payment must be made to the person who was partially unclothed. There is a need to mention both this and the previous example, for in the previous instance the person’s nakedness was caused against his will, while in this instance he willingly lifted his garments up.

Although the person will not suffer from the embarrassment while he is asleep, he will become aware once he awakes and suffer shame then.

This question is left unresolved by Bava Kama 86b, the question being: Is embarrassment a difficulty for the person himself alone (and therefore, since he never felt any embarrassment, no payment is due), or does it affect his entire family (and since they are alive, the money should be paid to them).
Therefore, because of the principle that money cannot be expropriated from the person in possession unless there is a certain claim against him, we do not expropriate the money from the person who caused the injury. By the same token, if the money is taken by the injured party’s heirs, it should not be expropriated from him, unless it has been established with certainty that it does not rightfully belong to him.
The Rambam’s opinion is quoted by the Shulchan Aruch (Choshen Mishpat 420:35). The Tur and the Ramah differ and do not hold the person who caused the embarrassment liable. They maintain that the embarrassment involves only the person himself, and not his family.

A mentally incompetent person has no balanced sense of shame. Indeed, he is always embarrassing himself through his own conduct. Therefore, a person is not liable for embarrassing him.

A deaf mute, though considered mentally incompetent with regard to many responsibilities, still possesses a sense of personal shame. Therefore, a person is liable for embarrassing him.

This applies to both a Hebrew servant and a Canaanite servant.

See Hilchot De’ot 6:8, which states that it is forbidden to embarrass a minor. One might infer that even if one is not financially liable for embarrassing a minor, it is forbidden to do so. (See also Halachah 7.)

Obviously, the embarrassment suffered by an adult - and a free man and a mentally competent individual - is much greater.

For damages are paid only when an individual’s physical person has been harmed.

I.e., punishing a person either physically or financially. The Shulchan Aruch (Choshen Mishpat 420:38) says that the person who caused the embarrassment should be put under a ban of ostracism until he appeases the person he embarrassed. The Ramah differs and maintains that he should be given stripes for rebellious conduct, the Rabbinic equivalent of lashes.

According to the Talmudic Encyclopedia, this amount would equal 336 grams of gold.

Although many k’nasot (fines) are not imposed in the diaspora, an exception is made in this instance to honor the Torah and its scholars. See Hilchot Talmud Torah 6:11, which states: “It is a great sin to disgrace Torah scholars.... Jerusalem was not destroyed until [its inhabitants] disgraced its sages.... Whoever disgraces the sages has no portion in the world to come.”

For all people, and especially a Torah scholar, should be willing to bypass any insult they suffer (see ibid. 7:13; Hilchot De’ot 6:9).
Note, however, the comments of that source that this refers only to embarrassment of a Torah scholar in private. When the scholar is embarrassed in public, it is forbidden for him to forgive the disgrace to his honor, for it is not his individual honor that is involved, but that of the Torah as a whole.

Avot 3:14. (See also Hilchot De’ot 6:8 and Hilchot Teshuvah 3:14, which explain the gravity of this transgression.)

I.e., rather than have each case evaluated individually, our Sages established uniform guidelines for payment for these blows. Regardless of the particulars of a given instance, the standard amount must be paid.

The Shulchan Aruch (Choshen Mishpat 420:41) quotes the Rambam’s ruling. The Tur and the Ramah (ibid.:43) differ and maintain that these specific amounts cover only the pain and the embarrassment. If there is a need for medical treatment or unemployment compensation, these are evaluated independently.

These coins weigh 102 grams according to Piskei Siddur.

Such a large payment is required because the embarrassment suffered in this instance is greater.

If the spittle only touches the person’s clothes, no payment is required, as stated in Halachah 5.

For these are also considered very embarrassing actions.

I.e., we do not say that he suffers embarrassment only once.

Sefer Me’irat Einayim 420:60 states that although the Rambam does not mention the value of the copper, the person who caused the damage is liable to pay that as well. Although the copper is worth far less than the silver, its value is not inconsequential.

The Maggid Mishneh explains that the concept mentioned in this halachah does not refer to the first three penalties mentioned above: kicking, butting and punching. These three penalties involve primarily pain, while the remainder involve primarily embarrassment.