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Shabbat Parashat Vayikra | 5769

Damage Bound to Heal

Hemdat Hadaf Hayomi



Baba Kama 84-90

 

This week in the Daf Hayomi the Gemara deals with the payments that a person who injured another person has to pay. While a person who damages property only has to pay for the damage (the loss of value of the object he damaged), a person who caused physical damage to another person has to pay, in addition to the damage payment (calculated based on the loss of work ability), four more payments: Shevet (loss of work days), Ripui (medical expenses), Tza’ar (compensation for the pain of the injury), and Boshet (compensation for the embarrassment caused by the injury). However, one is not obligated to pay all types of payments in every case, and the Gemara delineates when all the payments are applicable and when only some are.

One of the cases the Gemara (85b) discusses is when a person caused an injury that will heal completely. The question is whether the damager is obligated to pay the basic payment of damage, for there is a temporary loss of value, or not, since the injury will heal and the person will return to his former value, and he should only have to pay for the loss of work days (and the other payments if applicable). Regarding this question, there is a dispute between Abayey and Rava, and the Halacha is according to Rava’s opinion that there is no payment for the damage in this case and only for the loss of work.

The Rishonim disagree regarding a case where a person injured another person’s animal, causing an injury that will heal. The problem regarding this case is that, as stated above, one is obligated to pay for loss of work only when he damaged a person, and not when he damaged  someone's animal or property.  Indeed, the opinion of the Chachmei Tzorfat (quoted in the Rosh Baba Metzia 8, 4) is that the damager in this case is exempt from paying, even though the owner of the animal could not work with his animal for a few days, since payment for the loss of value for the animal cannot be applied, as the animal is bound to heal, and there is no payment for loss of work for damage to an animal. However, the Rosh says that there are those who disagree and claim that only regarding damage to a person do we not take into account the temporary loss of value, since a person is not for sale.  However, since an animal can be sold at any point of time, even a temporary loss of value is considered damage and the damager is obligated to pay.

These two opinions are quoted by the Shulchan Aruch (307, 6) and the Ramma ruled in accordance with  the Chachmei Tzorfat (and there are those who attempted to prove that this is the ruling of the Mechaber as well from 340, 2). The Shach (307, 6) rules that since this issue is in doubt, one cannot obligate payment.

The Netivot Hamishpat (340, 3) suggests that if the injury to the animal will not heal on its own but only through medical care, then the damager has to pay for the medical expenses. And, although normally, one who injures an animal does not have to pay for the medical expenses, in this case where, without the medical care, there will be permanent damage, one has to pay, as the medical care is essentially the fixing of the damage one caused.

The Chazon Ish (Baba Kama siman 13, 1-2) disagrees with the Netivot and states that, in any case, an injury that will heal is not considered damage even if medical care is required. Therefore, he claims that if one caused an injury to an animal that will heal, he is exempt from paying, since this is not considered to be damage, as the damage is temporary, and there is no payment for medical expenses for damage to an animal. However, the Chazon Ish states that this is only true for an injury to an animal, since, when the animal heals, it returns to its former state, and it is as if the damage never occurred.  However, if a person damages an object, even though the damage can be fixed, the fixed object is considered to be something new, and therefore the damager must pay for the damage in such a case.      

 

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Dedication

This edition of Hemdat Yamim is dedicated to the memory of

R ' Meir ben Yechezkel Shraga  Brachfeld

o.b.m

 

Hemdat Yamim is endowed by
Les & Ethel Sutker of Chicago, Illinois in loving memory of
Max and Mary Sutker

and Louis and Lillian Klein, z”l.

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