Chovel uMazzik - Chapter 1

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.