The Oral Talmud Episode 63: Calculating Damages (Bava Kamma 83b)
SHOW NOTES
“ When people say, ‘What makes something Jewish?’ A lot of times you're looking for some substantive answer to that, emphasizing the value of tikkun olam or whatever it might be. But no, what makes it Jewish is that it has been part of this process of changing and remixing, that's the essence of Judaism.” - Dan Libenson
Welcome to The Oral Talmud, our weekly deep dive chevruta study partnership, discovering how voices of the Talmud from 1500 years ago can help us rethink Judaism today.
Breaking someone's arm is easy to see. Breaking their future is harder to evaluate. This episode opens with an ancient legal question about damages, but the rabbis refuse to reduce injury to bones and bruises. They ask about pain. Lost wages. Medical bills. Humiliation. Even the emotional cost of being hurt. Suddenly, what looks like a legal code starts to read like a blueprint for taking human suffering seriously.
Then the conversation takes an unexpected turn. Benay and Dan discover that responsibility doesn't necessarily end with the wounding and physical recovery—it can continue as long as its consequences endure. Along the way, we uncover surprising connections between ancient tort law and modern debates about trauma, reparations, emotional harm, and justice itself. This isn't just an episode about what we owe someone after causing harm. It's about how far our responsibility to one another really reaches.
This week’s text: Bava Kamma 83b
Access the Sefaria Source Sheet to explore key Talmud texts and find the original video of our discussion. The Oral Talmud is a co-production of Judaism Unbound and SVARA: A Traditionally Radical Yeshiva. If you’re enjoying this podcast, please help us keep both fabulous Jewish organizations going with a one-time or monthly tax-deductible donation at oraltalmud.com. You can find a donate button on the top right corner of the website.
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DAN LIBENSON: This is The Oral Talmud - Episode 63: Calculating the Damages
Welcome to the Oral Talmud, a co-production of Judaism Unbound and SVARA: A Traditionally Radical Yeshiva. I’m Dan Libenson…
BENAY LAPPE: …and I’m Benay Lappe.
DAN LIBENSON: The Oral Talmud is our weekly deep dive study partnership, in which we try to figure out how voices from the Talmud – voices from 1500 to 2000 years ago – can help us think in new ways about Judaism today.
Breaking someone's arm is easy to see. Breaking their future is harder to evaluate. This episode opens with an ancient legal question about damages, but the rabbis refuse to reduce injury to bones and bruises. They ask about pain. Lost wages. Medical bills. Humiliation. Even the emotional cost of being hurt. Suddenly, what looks like a legal code starts to read like a blueprint for taking human suffering seriously.
Then the conversation takes an unexpected turn. Benay and I discover that responsibility doesn't necessarily end with the wounding and physical recovery—it can continue as long as its consequences endure. Along the way, we uncover surprising connections between ancient tort law and modern debates about trauma, reparations, emotional harm, and justice itself. This isn't just an episode about what we owe someone after causing harm. It's about how far our responsibility to one another really reaches.
Every episode of The Oral Talmud has a number of resources to support your learning and to share with your own study partners! If you’re using a podcast app to listen, you’ll find these links in our show notes: First, to a Source Sheet on Sefaria, where you can find pretty much any Jewish text in the original and in translation – there we excerpt the core Talmud texts we discuss and share a link to the original video of our learning.
In the show notes of your podcast app, you’ll also find a link to this episode on The Oral Talmud’s website, where we post an edited transcript, and where you can make a donation to keep the show going, if you feel so moved. On both the Sefaria Source Sheet and The Oral Talmud website.
And now, The Oral Talmud…
DAN LIBENSON: Hello, everyone, and welcome back to this week's episode of the Oral Talmud after a three-week break. So hey, V'ne. Great to see you again after a while.
BENAY LAPPE: It's so great to see you. It's great to be back.
DAN LIBENSON: Yeah. I've, so we've been away so long I've kind of forgotten how to do some of the mechanics of streaming this show, so apologies for-
the way that we started here, but, um, it's great to be back. V'ne, like I was actually curious, like during your vacation did you, do you study Talmud a lot or do you like actually take a vacation from that?
BENAY LAPPE: Y- you know, what I did was I read... Well, I, first of all I cleaned my office. You notice, clean and orderly.
I cleaned my office, I cleaned my house, but mostly I read about Talmud.
DAN LIBENSON: Mm.
BENAY LAPPE: I, I'm a very slow reader in English, so I need a lot of time and space to read. So I got, I got, I read this really cool book from 1933 called The Redaction of the Babylonian Talmud. Um, anyway- Oh. Uh-huh ... reading, reading about Talmud was mostly what I did Talmud-wise on my vacation.
DAN LIBENSON: And w- by the way, when you say you're a very slow reader in English, does that, does that mean you're like a speed reader in Aramaic or- ... Hebrew or what? I- i- i-
BENAY LAPPE: no. It, it just means that you might think that as a native speaker of English- I read at a normal speed. I don't. Even in English. That's what I meant.
DAN LIBENSON: Me too. That's why I, I, I, I really listen to a lot of audiobooks and, and unfortunately there's a dearth of, uh, audiobooks on the Talmud, so maybe we, we can get that fixed at some point. Yeah. Uh, let's, let's get, maybe there's, maybe that, uh, that book that you have there is, um, out of copyright and, and we could, uh, record it.
Anyway, uh, to be, to- Maybe ... to be discussed. Um, okay. So today, so we're back and, uh, today we're gonna start a new, a new text. Mm. Uh, that's, that we're actually gonna probably be on for a few weeks. I mean, I'm sure we're gonna be on it for a few weeks. It's just a question of whether it's- An- ... a few or many.
BENAY LAPPE: Yes, absolutely. Um- This, this is the text of all texts. I, I kn- I know that I often say, "This is one of my favorite texts," before we begin learning, but this is really it. Okay, don't tell the others, okay? But this is it. This is my favorite text. You know, if God forbid the whole Talmud should go away and there's only one text I could ever teach or have, this one is it.
DAN LIBENSON: Wow. So- Yeah ... so the text that, so just, uh, for folks to orient themselves, the text that we're, uh, doing is, uh, uh, from the tractate called Bava Kamma. Uh, page 83B is where it starts. It, it'll go on to 84A as well. Um, so say, can you say a little more about like why is this the text of all texts and what is it that we're, um...
You know, can you put it into a little bit of context before we jump into it?
BENAY LAPPE: Yeah. So
You know, a number of years ago, my mother needlepointed me a tallis bag for my first tallis, and it's a sampler. And what a sampler is, if you're a needle crafter, is a piece of embroidery or cross-stitch or needlepoint that demonstrates a multitude of stitches. So there's a pattern on the piece, and it's typically framed, and it's kind of like a demonstration piece.
So the scene on my tallis bag is a scene of Jerusalem. Fine, that's the scene. But if you look really closely, and you would miss it unless you looked really closely, each little s- component of the cityscape is a different stitch. And that's what a sampler is. A sampler was traditionally something that, um, the stitcher would use to demonstrate their skill and to, to preserve the, the different sort of stitching technologies.
And this, um, tallis bag that my mother made for me has about 20 different stitches in it. Okay? All right.
And these, these stitches are handed down from typically mothers to daughters. Uh, I've learned a lot about needlework ac- as I've been thinking about this metaphor, and it turn- actually, sidebar, it turns out that it's only been in the last couple hundred years as fem- femininity has been constructed that needlework has shifted from men to women.
But ha- Hmm. Yeah, that is- I didn't know that. Okay. Yeah, it wasn't, it wasn't a- since the beginning of time- Okay ... a woman's work.
DAN LIBENSON: Hmm.
BENAY LAPPE: But that's a separate issue. I
DAN LIBENSON: guess, I guess that, you know, I mean, I just think of, like, Fiddler on the Roof, the tailor was a man, you know, so yeah. Yeah,
BENAY LAPPE: yeah. Yeah. Exactly.
Exactly. Uh-huh. So in any case, so it, it's, it... They're skills that are passed down and preserved and demonstrated with pride. Okay. So the reason this metaphor comes to me in relation to this text is this text is a sampler. It, it walks the learner through all the stitches needed to take this sacred document we've inherited, the Torah, and to use it to create something better, frankly, to radically transform it in a Jewish way, um, according to, you know, the rules of the game.
And these different technologies, these different methods for transforming Torah are the stuff of Judaism. That- that's the, the, the, the most Jewish of what's Jewish about Judaism.
DAN LIBENSON: Mm-hmm. Mm-hmm.
BENAY LAPPE: That ... Not, not the stuff itself, but the way of changing the stuff.
DAN LIBENSON: Hmm.
BENAY LAPPE: And th- th- this passage demonstrates this traditionally radical approach in a dozen different ways.
Actually, 10 to be precise.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: Um, and, and it feels like a sampler. It feels like not only is it a sampling of the methods, it's the text that the student needs to learn to have in their tool belt- Mm-hmm ... all of these methods of, of getting out of the bind of having received a document that we say is God's word, which over the years we know- Little by little is imperfect, inadequate, and just wrong-headed here or there or there or there.
So that's why I love this text
DAN LIBENSON: Mm ...
BENAY LAPPE: and it is, it's like the, for me, the ultimate demonstration of what I call the traditionally radical approach of the rabbis to the tradition.
DAN LIBENSON: Yeah, and, and just to lift up something that you said, 'cause I think we'll, we'll return to it. I, you said it in a beautiful way, that it's obviously something we've been saying for years, but I liked how you just said it, was some version of like when people say like, "What makes something Jewish?"
You know, uh, a lot of times you're looking for some substantive answer to that. It, it emphasizes this, the value of, you know, tikkun olam or whatever it might be. But no, you know, the idea that what makes it Jewish is that it's been part of this process of changing and remixing, that that is, that's, that's the essence of, of Judaism is kind of fascinating to me and, and helpful to, to think about it.
And then whether that means using these certain set of techniques or it's in conversation with a certain body of stories or something like that, you know, and the substance is actually not what makes it Jewish at all. Or, you know, that might be an ov- it could get to an overstatement, but, but that the process is much more important than the substance.
BENAY LAPPE: Yeah, and I think there, there are also a small number of values-
DAN LIBENSON: Mm-hmm ...
BENAY LAPPE: and principles.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: And we've been talking about those as well and, um, and those are changeable but, but are, are sort of separate from the stuff in a way that makes them much more stable.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: And they, they sort of rise and lower in importance.
The, the principles s- are very slow to change, and they're, they're, like, good Mm-hmm And the question is how... Right? Like, equality, democracy, human life, value, you know, infinite val- The, these things are, are pretty good. The question is how do we play them out. That changes a lot Mm-hmm A lot
DAN LIBENSON: Okay, so just for a, a little more context, uh, just where th- this, this text sits, the...
Uh, correct me if I'm wrong, but the, the, there are three tractates of the Talmud that have the name Bava something. I think Bava means a gate. Is that right?
BENAY LAPPE: Mm-hmm
DAN LIBENSON: Uh, and so, and Bava Kamma, uh, is the first one. That means the first gate. Bava Metzia is the second one. It means the middle gate. And Bava Batra is the third one, and it means, I guess, the last gate, or I'm not- It does Yeah It
BENAY LAPPE: does.
Mm-hmm
DAN LIBENSON: Um, so, um, and these are basically where, uh, from a substantive standpoint, these are where, they're sort of built around what we call tort law in America or in the Anglo-American legal system. Tort law is basically the law of injuries and causing harms to people that are, um, not criminal, that are, uh, that...
So, so it's not that you're gonna be, uh, s- um, put to death or, uh, put in prison or whatever. That's the, the criminal law of w- when you breach that. Uh, but this is more the sort of civil law of injuries, where you would most often pay some kind of compensation. That's what we call tort law, right?
BENAY LAPPE: And-
DAN LIBENSON: E-
BENAY LAPPE: exactly
DAN LIBENSON: And, and so this particular text w- is talking about, uh, this...
So we're gonna first look at the Mishnah. Uh, and, and this basically, uh, gets at what I think... I'm trying to remember. Like, I took tort law. I never taught it. Um, so it's been... I taught contract law, so it's been a while since I've really thought about what the structure of the tort law class is like. But I think that, that this topic comes towards the end of the, the tort law course in the first year of law school, because it's saying, "Okay, now we've talked about what is a tort, you know, what, what kind of harms does the law protect against?"
And then you get to this question of, like, well, okay, well, let's say that you did commit a tort. What are the, w- what, what are the, the, the ramification? Like, what are the, what are, what are the, uh, penalty? It's not, that's not the... I'm, I'm blanking on the word. But, you know, what are the, um, uh, y- you know, what, what, what-
BENAY LAPPE: Consequences or punishments
DAN LIBENSON: consequences or what do you have to pay, basically? You know, how do we determine what the, uh, what the, what the-
BENAY LAPPE: Compensation ...
DAN LIBENSON: obligation, compensation or, no, some other law word that I'm blanking on. Anyway, it's been a long time- Okay ... I've
BENAY LAPPE: been in law school About torts generally, i- am I right that a tort can be a financial harm?
Like, um- Cheating someone in business or a physical harm, a bodily harm?
DAN LIBENSON: Yeah, I think so.
BENAY LAPPE: Yeah. Uh-huh.
DAN LIBENSON: Mm.
BENAY LAPPE: Okay.
DAN LIBENSON: Um, I, yeah, I, I, but I think that... Well, I should, I should probably have looked up the, the official definition of a tort, but, you know, at least, at least, uh, the, in its most basic sense, the idea is that you, you have done something not illegal, but negligent or intentional that has caused harm to someone.
I think that harm can be physical. That harm could also be economic. I don't think it's like a tort if you, like, cheat someone in business, you know, or something like that. I don't think that's what we'd mean by a tort law. But if we, if you're somehow, um, for example, uh, somebody's deposited money with you and you've, you know, invested it in some crazy investment that, uh, you know, was, it was negligent of you to do, that might be classified as a, as a tort.
Uh-huh. But usually when we're- Okay, but, but- Yeah ...
BENAY LAPPE: but, but cheating someone in business is forbidden according to Jewish law- That- ... whether it's called a
DAN LIBENSON: tort or not ... no, no, it's also forbidden in, in American- Yeah ... law, but that's a crime, you know,
BENAY LAPPE: like- Okay. Okay, good ...
DAN LIBENSON: I, I think. You know, uh, uh, it's, there's things at the lines.
But I mean, I think a lot of times when we talk about torts, and, and this is what we're talking about here, at least in this text, we're talking about, um, when your behavior causes a physical harm to someone or an economic harm to someone, like your, their house burns down because of your negligence, uh, you know, in, with your, with your, um, uh, you know, barbecue next door, and that causes the house next door to burn down, that's a tort, you know?
And- Right ... and so, uh, here we're talking about physical harms that are caused and what are the ways in which you have to compensate the person who, who you've harmed through your, your actions.
BENAY LAPPE: Right. Right. You're bring- you're bringing back what I, what I learned in my little moment at the OC Law- Yeah, you've taken
DAN LIBENSON: torts more, more recently than
BENAY LAPPE: I have.
Yeah, and it became one of Molly, my daughter Molly's and my favorite games, 'cause I would tell her the stories I learned, and the question was always liable or not liable, right? Right. If a person does this and then this happens, is the person who did this liable or not liable? She loves those stories.
They're fun.
DAN LIBENSON: Yeah. Oh, and by the way, I've, I've remembered the law word that I forgot, which is damages, right? Uh-huh. So the, so when we talk about torts, we, we talk about liability, like did you, are you responsible? And then we talk about damages. If you are responsible, what do you have to pay? Mm. What do you have, how do you compensate the person?
BENAY LAPPE: Cool.
DAN LIBENSON: So, um, okay, so, so the, the Mishnah here basically starts by looking at this question of damages. Um, any other setup you wanna do?
BENAY LAPPE: No, I think that's good
DAN LIBENSON: Okay. So let's- Mm-hmm ... jump into it.
BENAY LAPPE: Okay.
DAN LIBENSON: And, uh, the Mishnah starts, "One who injures another is obligated in five categories." S- And that basically means there are five categories of damages that, that you could be assessed, uh, or five bases for d- the damages that you're going to be assessed.
BENAY LAPPE: Right.
DAN LIBENSON: For d- for damage, for pain, for healing, for rest, and for humiliation
BENAY LAPPE: Okay, great. Now the question is, what do these mean, and how do we determine the amount of damage in each of the categories?
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: And the, and the Mishnah's gonna take that up as well. And by the way, already we can see there's a certain familiarity about this statement.
It, it, it shouldn't surprise anyone that these categories are the categories of damage. They happen to be the exact same categories in modern American secular law, which came directly from the Mishnah.
DAN LIBENSON: Mm-hmm. Um- Yeah, because we know about pain and suffering damages, we know about compensatory damage, and, uh, you know-
BENAY LAPPE: Lost wages
DAN LIBENSON: and-
BENAY LAPPE: Right
medical expenses.
DAN LIBENSON: Right. Right. So, you know, yeah, so if you think about modern tort law and you say, "Well, if somebody's injured, bodily injured by somebody, uh, what kind of things do you have to pay for?" Well, you have to pay for their medical care for sure, right? You have to pay for their, like you said, their lost wages, the ti- the time that they're out of the workforce because of the injury that you caused them.
You have to pay for, um, uh, you know, if they can't work in the same way forever, you know, you have to sort of compensate for that. So there's all kinds of, um, uh, all kinds of, of ways. I mean, by the way, which leads to sometimes very sort of cruel, um, legal, uh, legal, uh, you know, damages findings. For example, if a child is, is injured, you know, well, they're not, they're not working.
We don't know how much they were gonna earn in the future, so a lot of times that, that, those damages get under, under, uh, counted in the American legal system because, you know, you sort of can't prove that this person was gonna be a financier who earned, you know, millions of dollars or whatever. Mm. So you end up with a, with a smaller, uh, smaller damages than probably there should be.
BENAY LAPPE: Interesting. Interesting. And by the way, that similarity between American law and this Mishnah, uh, is pointed out by one of my teachers, Elliot Dorff, um, in his law school textbook on Jewish law, and he reprints the California jury instructions that the judge gives to the jury before they go off to discuss what the damages should be in a, in a tort case in, in, and it's almost word for word our Mishnah- Hmm
which is really cool.
DAN LIBENSON: Hmm. Okay. So then we go on to the, to, to look at these, uh, categories and, and basically for each one, the, the language of the Mishnah is, is more sparse, but they're basically asking how do we assess each of these types of damage, right? Um, so as for damage, how- Uh,
BENAY LAPPE: eith- either how do we, uh, eith- either how do we, uh...
Sorry.
DAN LIBENSON: Go ahead
BENAY LAPPE: I was just gonna say the question, the, the question's either how do we assess it, what is the extent of the damage? Okay. Okay. The compensation for the damage. Okay.
DAN LIBENSON: So as for this first one, which is just called damage, as for damage, how? And the Mishneh goes on to-
BENAY LAPPE: Right ... explain.
DAN LIBENSON: S-
BENAY LAPPE: s- so it's...
I'm so sorry, I keep interrupting. Oh, no, it's fine. So the word damag- damage i- is confusing because damage seems like the general event, a damage occurred. But here damage is used in a very technical way. Mm. So it isn't actually global, it's a certain category of harm, and we're gonna find out what the category of damage actually refers to.
Okay.
DAN LIBENSON: Okay. So if one blinded another's eye, cut off his hand, broke his leg, we view him as if he were a slave being sold in the market and evaluate how much he was worth and how much he is worth.
BENAY LAPPE: Right. So one of the tasks of learning Mishneh or Gemara is always to nail down what's the antecedent of every pronoun.
So we have a lot of hes and hims, and they switch, right? Uh-huh. W- whether it's referring to the injurer or the injured party. So, okay, um, so let's sort of unpack this a little bit. Yeah. So if someone blinds someone else, cut offs, cuts off his hand, or breaks his leg, and presumably some other, any, any other kind of physical damage.
Mm-hmm. I think this is an incomplete list of examples, not an exhaustive list.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: We view him. The question is who's we? And I think the we is the court.
DAN LIBENSON: Mm-hmm. Right.
BENAY LAPPE: Okay. So the court views him, the damaged par- the injured party, as if he were a slave being sold in a slave market, and we evaluate how much he was worth before he was injured, and how much he is worth after his injury.
And in other words, how much he would... I mean, this is a, it's, it's a, a sort of a painful context or framework to even, to even imagine, but there was a slave market. Mm-hmm. And people could sell themselves as slaves-
DAN LIBENSON: Mm-hmm ...
BENAY LAPPE: um, a- as a, as a form of bankruptcy- Mm-hmm ... or avoiding bankruptcy.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: Uh, in other words to, to gain money.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: And your worth on the slave market was dependent upon whatever skills and expertise you had in a certain field. So we have to imagine the most maximal slave market where buyers w- might be interested in musicians. Mm-hmm. They might be interested in day laborers, they might be interested in teachers, whatever.
So that all of your skills which lead you to make money-
DAN LIBENSON: Mm-hmm ...
BENAY LAPPE: are all what go into what your value would be before your injury.
DAN LIBENSON: Do you, I mean, do you think, though, that, like 'cause that, that's a kind of an expansive, uh, view of the meaning of, of that, this wa- this part of the damage calculations, 'cause I was thinking of it as a much more limited...
Like for example, a musician. I mean, m- a musician's probably not a great example because, like, maybe people did want their slaves to play music. But, but let's just say that we have, like, someone, like, who's a great musician, and they're injured such that their, you know, hand is injured and they can't play the violin anymore.
Do we assess that, the, that damage as, um, you know, kind of the loss of their musicianship, or do we look at that person, like let's say they were not a, they were just a regular person who was being sold on a slave market to do, like, labor, and we would say, "What's the value of, of..." We're not, we're not comparing that person to their value as a musician, we're comparing that person to their value as just a, a worker, which ostensibly would be lower.
And, um, so it's actually kind of a, a, a more, like it's saying like what would be, what would the average person be worth on the slave market, and what would this person be, uh, be worth on the slave market? Now, if that person happens, let's say they were not a musician, but they were an accountant, maybe that would be something much more valuable in the slave market because you, you wanted to have a slave who could do your business, you know, books.
So that would actually be of more value. Something like, you know? I don't know.
BENAY LAPPE: Um, I, I always imagine this as a kind of imaginary maximal slave market, because I think the damage category recognizes any diminution in income-earning potential, any potential. A- and that would be, you know, a skill that isn't typically, um, valued... Uh, when we think of a slave market, um... I don't know. You know what I picture?
What... I'm, I'm, uh, I, I can... Uh, I don't even know if I should even begin this conversation. It, it's-
DAN LIBENSON: Yeah ...
BENAY LAPPE: uh, but, but the most, uh, modern-day equivalent that comes to my mind is when I lived in Los Angeles, I remember there were corners where people who were available to work as day laborers would go and gather in the mornings, and people who needed hands and people to do construction or do whatever they...
right? Would drive up in trucks and go, "You, you, you, you." Mm-hmm. You know, I, I think in that context, the people driving up in trucks who are looking for, who knows, w- bricklayers, were gonna pick the strongest ones
DAN LIBENSON: Uh-huh
BENAY LAPPE: But I think the... I don't see any indication that a person's, um, compensation in the category of damage is limited to physical labor
DAN LIBENSON: Uh-huh.
BENAY LAPPE: And I know, I know the sh- the shuk, the, the slave market implies that, but I don't think it means a literal, you know- Yeah ... day laborer shuk.
DAN LIBENSON: Uh-huh.
BENAY LAPPE: Uh, so
DAN LIBENSON: Yeah, well, I, I don't think we can or need to resolve that right now. But one other thing that I would just note is that, like, in our, in, in American law today, if you're in a situation where you have to calculate damages, there now, especially now, like in our, in the 21st century, in the 20th century also, there were these, like, sophisticated economic calculations where you're basically asking what is the lifetime earnings potential of this person?
And then you-
BENAY LAPPE: Exactly ...
DAN LIBENSON: you, you find the net present value of that, uh, of that earnings potential, right? Because, uh, because for example, right, there's g- if you give somebody money, they can then put it in the bank and there's interest. So, you know, let's say somebody could earn a million dollars over the course of their life.
You don't actually have to give them a million dollars right now. You could give them, let's say 800,000, and that would gain interest over the course of their lifetime. So that would kind of c- so there are these, like, sophisticated calculations is what I'm saying. So you always like, you know, call in some, some economist or some kind of person who can testify as to the actual value, long-term value of this person.
Now, it's, what's interesting to me is that they didn't, I don't think, have, you know, that kind of economist back then. But the slave market, again, it's like terrible to talk about, but, like, it was actually the institution in their life where people, in a much rougher way, were used to calculating the lifetime value of this person because they were only gonna make one transaction.
They were gonna buy him or not buy him, or, you know, her or them, whatever. You know, and so, you know, I mean, I think that that's what they're trying to get at is my point. You know, that they're- Yeah ... that they, that they're using, they're using the only institution that they had in their society at that time, which was a slave market, where you would make these one-time, uh, economic calculations about the long-term value of a person's labor.
The secondary question of, you know, how much were they attuned to the special circumstances of a person, whether, you know, this person would have earned a lot of money in their lifetime and, and this person who's the same age, same life expectancy, would have earned a lot less because they had less of a special skill, to what extent were they attuned to that?
I think that's, that's one of the, that's, that's at least somewhat of an open question. Um, and, you know, and part of why it's important, I think, is just because, like, let's say you, let's say you did wanna take seriously Jewish tort law today, and you said, "Well, what were the rabbis really after here?" You know, were they trying to say, "Hey, you know what?
We're all created equal. I mean, at the end of the day, um, you know, each person is created in the image of God, and so let's create a, a singular value for a lost-" Some lo- for damage, you know, for somebody in terms of, you know ... And so let's actually say, like, if you were, if you were a, um, a, a, an athlete, let's say, who was earning millions of dollars a year for your leg, you know, versus you're a, a person who is a day laborer and you earned a few tens of dollars a day, you know, and that you've lo- You know, like, should we assess the athlete at a higher value, or should we assess both at the kind of standard value of, of human labor?
BENAY LAPPE: Yeah. That's interesting. And they clearly didn't choose to go that way.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: They, you know, they went the way of, like, what's, what's the real and actual
In financial, financial impact of this certain injury on this person-
DAN LIBENSON: Mm-hmm ...
BENAY LAPPE: and their, and their earning capacity.
DAN LIBENSON: Okay. Yeah. So continue.
BENAY LAPPE: Okay, so this is a, a mathematical calculation.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: Before your injury, uh, you could have earned, you know, $100 a day for the rest of your life. Now, after your injury, you're only gonna get $50 a day.
The difference is the amount of compensation paid to you by the insurer in the category called damage. So this damage category actually means- Reduction in your l- life earnings. Reduction in your ability to earn wages for your, for your life, i- i- for your family and yourself. Okay, that's damage.
DAN LIBENSON: Okay.
BENAY LAPPE: Right.
DAN LIBENSON: So next, uh, category. Mm-hmm. As for pain-
BENAY LAPPE: Mm-hmm ...
DAN LIBENSON: how?
BENAY LAPPE: Right. So- The second
DAN LIBENSON: category is pain.
BENAY LAPPE: Right. So probably how still refers to, or the implied how, how do we calculate? The question for each one of these may change, but still it, it, it looks like it's how d- how do you put a price- Mm-hmm ... on someone's pain?
That's the question, right? It-
DAN LIBENSON: Yeah. This is an interesting approach.
BENAY LAPPE: Yeah.
DAN LIBENSON: So if one burned another with his spit or with a nail, and even on his fingernail, uh, uh, which is explained that a fingernail's a place where it doesn't cause a bruise. Mm-hmm. Or, I mean, you know, I don't know. Uh, sometimes it does. But anyway.
Um, so, so like the, um, so even if you're only injured on your fingernail and you don't have a bruise or I guess probably the idea is like a permanent, like the fingernail will eventually grow out, um, we estimate how much a similar person would want to take to suffer in this way. Yeah. Which is fascinating.
Y- So if I understand this correctly, the analysis is how much does, how much should you be compensated for the pain that you, that you were caused by this injury to your leg, let's say. Uh, you know- Yeah ... you'll say you were burned on your leg. So we say, "Well, let's, let's take a hypothetical person who has not been burned on their leg and say, 'Uh, how much would I have to pay you in order to l- have you allow me to burn you on your leg?'"
Right?
BENAY LAPPE: Exactly. Exactly. And additionally, the phrase how much, where is it? A similar person.
DAN LIBENSON: Uh-huh.
BENAY LAPPE: Right? Uh-huh. That's defined, Rashi clarifies that, and what that means is a person who has the same pain threshold. Uh-huh. This person suffers the same amount of suffering from the same amount of injury, or, or feels the same amount of pain.
And this reminds me of something that I learned in that torts class, the idea of the eggshell person.
DAN LIBENSON: Yeah, I was thinking exactly the same. Yeah.
BENAY LAPPE: Right. Okay. So y- you know much better about the eggshell person, so you, so-
DAN LIBENSON: Well, again, you, you took torts more recently than I did. But as I understand, the, the eggshell, the eggshell, uh, plaintiff or the eggshell, uh, victim i- is somebody, the idea is that basically, you know, some people, uh, are very like, um- You know, like their body is, is hard to hurt, you know, basically.
Like, so- They're, like,
BENAY LAPPE: tough, right?
DAN LIBENSON: Just tough. Or, or just normal, right? So I think that the famous case of the eggshell plaintiff is, is like a kid who's sitting in his classroom, and another kid, like, kind of kicks him under the table, and for most kids, uh, no, no injury would be caused by that. It's not like they kicked him like a...
It wasn't a bully that kicked him in, on the playground or something. It was like, just somebody that, like, kind of tapped somebody with their leg u- under the table. But this particular person was very, uh, was very fragile. You know, they may- maybe they had some kind of bone, uh, disease or something, you know, and, and they had a severe injury as a result of this kick.
And the question that gets raised in these torts, uh, cases is, should the person be compensated as, as th- a normal person? You know, like, you just say, like, "Well, no, it's very abnormal that you should have such an injury from such a small kick, so we're not gonna compensate you for that. That's your own sort of problem."
Or do we say, "No, no, everybody should be ca- uh, compensated based on their own personal situation"? And, and that, I think, is where the cases come out that say no, that we, we, uh, we, um, compensate you for your actual injury, not for the normal person's normal injury. That, that, or- Or what would be,
BENAY LAPPE: or what would be expected by the injurer to result.
DAN LIBENSON: Right. Exactly. Right? Right, right.
BENAY LAPPE: And what's interesting about the mission in relation to what you just said is the mission is acknowledging eggshell-ness in the emotional realm, not just the physical realm, right? Mm-hmm. So in the case you gave- Right ... this kid had a, a bone disease which did cause him an actual physical injury.
The mission is saying w- we find someone who has the emotional experience that you have, and, and sort of recognize and, and appreciate and value and accept-
DAN LIBENSON: Uh-huh ...
BENAY LAPPE: that you may be a person who experiences a ton of pain from the tiniest little injury.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: And you're gonna be compensated in a bigger way than the person who is, like, you know, whatever, super macho or, you know- Stoic and, and doesn't experience much pain.
So they find someone who experiences pain like you, and just like you said, they say to that person, "How much would I have to pay you for you to be willing- Mm-hmm ... to undergo the experience that this actual injured person had?"
DAN LIBENSON: Then that's, that's what you're, you're putting that interpretation on the word similar.
Uh, and is- Yeah ... is that what Rashi says specifically?
BENAY LAPPE: The, the actual Hebrew is a person who goes out like this.
DAN LIBENSON: Right. Exactly.
BENAY LAPPE: And, um, and yeah. And, and Rashi says, um, according to how much he suffers pain, um, you know, how much the bigness of his tza'ar-
DAN LIBENSON: Mm-hmm ...
BENAY LAPPE: his, his suffering and pain.
DAN LIBENSON: So b- essentially, we're looking for somebody who has a similar pain threshold.
BENAY LAPPE: That, that's it, pain threshold.
DAN LIBENSON: And we're saying, how much would that person require to have this injury which would cause him or her that amount of pain? And, uh, that's how we calcul- then, then we say, "How much would you, would you say?" I mean, it reminds me of, like, these kind of, like, schoolyard, uh, you know, "Well, how much, you know, how mu- if I, if I paid you, you know, a million dollars- Right
would you let me punch you in the nose?" You know, whatever. Right. And it's like, no, that's actually the conversation here.
BENAY LAPPE: That's, that's right. And we're not going to get to the Gemara on this particular line of the Mishnah, but what the rabbis in the Gemara, you know, several hundred years later do with this line is really interesting.
Mm-hmm. The first thing they say is, "First of all, what idiot would, would take any amount of money to let their hand be cut off?"
DAN LIBENSON: Uh-huh.
BENAY LAPPE: I mean, so- Uh-huh ... so this system doesn't really work, and they, and I, they don't s- explicitly say it, but I think they realize the economic complication of this form of calculation.
Mm-hmm. Because a poor person who experiences pain the way I do-
DAN LIBENSON: Mm-hmm ...
BENAY LAPPE: is gonna be much more willing to have their hand cut off- Mm-hmm ... for a smaller amount of money- Mm-hmm ... than a wealthy person- Mm-hmm ... with a similar pain threshold. Mm-hmm. A wealthy person is gonna say, "Eh, no, I, I wouldn't take a billion dollars-
DAN LIBENSON: Mm-hmm
to
BENAY LAPPE: have you cut off my hand."
DAN LIBENSON: Right.
BENAY LAPPE: A poor person's gonna say, you know, "Give me $500, and yeah, I'll do that."
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: So they say that- But a
DAN LIBENSON: billion dollars just for, like, a little burn, like, I, I would consider that.
BENAY LAPPE: Right, right, exactly. So then they, they, they, they work on this piece of Mishnah, they, they g- they twist it.
They say, "Okay, it's not how much would someone else be willing to take to endure the pain, it's how much someone in a similar p- with a similar pain threshold would be willing to pay to avoid the pain." Then they go, "No, no, no, it's not that. It's how much someone who's already been sentenced by the court- Hmm
to have a certain part, how much they'd be willing to avoid." So-
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: Mm-hmm ...
DAN LIBENSON: the,
BENAY LAPPE: the, the rabbis have trouble with this piece of the,
DAN LIBENSON: of the Mishnah. Yeah, 'cause obviously it's a little, yeah.
BENAY LAPPE: Right.
DAN LIBENSON: Um, okay. So next one? Yeah. Um, all right. So after pain, we have, um, we have, uh, healing. How? So-
BENAY LAPPE: Right. But, but I wanna, I, I just wanna spend one more second saying- It's not trivial that an emotional experience is being recognized, valued, and compensated for.
Mm-hmm. I, I think that's not obvious. W- it, it, it feels obvious to us because we're the inheritors of that mindset.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: But you don't see that in the Torah anywhere.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: And I think this was an innovation of the rabbis whose Sefirah told them, "You know what?" Y- your emotional experience is real
DAN LIBENSON: Mm-hmm
BENAY LAPPE: and it's a part of what happened, well, you know, p- a part of a physical trauma is the emotional experience, and that needs to be recognized and treated the same way as the actual physical injury. So I, I think that's interesting and significant.
DAN LIBENSON: Yeah, and I don't know if you know, if you know, but I, I mean, it's, it's interesting to me whether this is an innovation of the rabbis or whether maybe in, like, Persia this was already, uh, an established- Mm-hmm
idea and they just thought it was a good one. I, I have no idea, but that's-
BENAY LAPPE: I don't either. That's a good
DAN LIBENSON: question ... if it is an innovation by the rabbis, that's amazing, right? Mm-hmm. That's, that's a really, like, just like you said. Um, okay, so next topic is this c- this category of damages called healing.
BENAY LAPPE: Mm-hmm.
DAN LIBENSON: Uh, so healing how? If one struck another, then he is obligated to heal him. If- Okay ... which I mean, which I, I assume means pay for the doctors.
BENAY LAPPE: That's right. That's right. Uh, and in fact, in the Gemara, which we're not gonna get to, this is, this is a many, many page passage of unpacking this Mishnah, and when they get to healing, um, yes, it's very clear that this is talking about medical bills.
So you, you've gotta pay for the medical bills that the person who you've injured has to pay. And one of the things the Gemara says is, "Well, what if the injurer says to the injured party, 'Hey, I'm a doctor. I'll heal you for nothing.'"
DAN LIBENSON: Uh-huh.
BENAY LAPPE: Right? Uh-huh. To avoid paying for the injured person's medical bills, even if he's a real doctor.
And the Gemara's response to that: "A doctor who heals for nothing is worth nothing." Which is, you know, the, the injured party could say, "You look like a crouching lion. You look like an arye arba to me." Like, "Get away from me-
DAN LIBENSON: Uh-huh ...
BENAY LAPPE: Mr. Doctor Inj- I, I, you know?"
DAN LIBENSON: Uh-huh. "
BENAY LAPPE: I'm going to my doctor." And so the, the injurer can't sort of cheat this person out of their medical bills by saying- Right
"I'll take care of you and you won't have any medical bills. I'll do it for free."
DAN LIBENSON: Uh-huh. Uh-huh.
BENAY LAPPE: Anyway.
DAN LIBENSON: That's, uh- That's good on a, on many levels, you know? I, I, that could be like- Right ... the, um, I ca- I k- kind of see that as the, um, catchphrase of a, you know, for-profit HMO kind of thing, you know, with like- ... "A doctor who heals for free is not worth anything."
BENAY LAPPE: Exactly.
DAN LIBENSON: Um, all right. So, um-
BENAY LAPPE: It's, it's a corollary to the you-get-what-you-pay-for-
DAN LIBENSON: Yeah ...
BENAY LAPPE: idea. Okay. So this is, yes, this is medical bill.
DAN LIBENSON: Well, by the way- How about the injured- ... this also accords with, you know, the long-term, uh, wish for Jewish parents for their child to be a doctor. Now I understand it. Like, this is the-
the talmudically certified legitimate source of income.
BENAY LAPPE: That's right.
DAN LIBENSON: Okay.
BENAY LAPPE: So- Actually, the Jewish, the Jewish history of me- and, and with medicine is really interesting. That's for another passage at another time, but it's not an accident that, um, there is this- interest, or has been, this interest in having your child be a doctor.
We'll get to that another time.
DAN LIBENSON: Okay, great. I'm excited about that.
BENAY LAPPE: Um- Okay. There, there is a Jewish history to that, yeah.
DAN LIBENSON: Okay. So, uh, if growths appeared on hi- so this is, we're still in the, in the topic of healing, and we're saying, so there's one thing if it's, like, you, you injure somebody and it's clear that the injury caused, you know, a broken bone, then you have to pay for the doctor, the doctor bills to set the bone and to do whatever else is necessary.
But this is a question of, like, if something happened basically later, like indirectly, right? B- And, and so, and th- they're saying growth, so somehow you were, like, injured somewhere and then, like, growths appeared in that site of the injury.
BENAY LAPPE: Yeah, maybe it's an infection. Mm-hmm. Maybe it's a rash. Maybe it's, uh, yeah, some complication.
So now the question of how has moved from, uh, h- how do, like, how do we assess medical bills? Uh, or he- what is healing? It's paying medical bills. Now it's to what extent is the injurer obligated to pay medical bills? Do I have to pay this person's medical bills for the rest of their life? Right.
DAN LIBENSON: Right.
BENAY LAPPE: That's a question. Okay.
DAN LIBENSON: Okay. So if growths appeared on him, if due to the blow, he is obligated. If not due to the blow, he is exempt. So that makes sense. But so then we need, like, an expert witness to tell us whether it was caused by the injury or not.
BENAY LAPPE: Exactly. But, and that is also not insignificant that the injurer is obligated for not only the medical bills of the injury, but the medical bills of any complications that arise as a result of the injury.
Ooh, um-
I just read last night a re- a really s- s- such a sad case that this reminds me of, of, um, the woman who, um, shook a five-month-old baby-
DAN LIBENSON: Mm ...
BENAY LAPPE: um, 35 years ago-
DAN LIBENSON: Mm ...
BENAY LAPPE: and who was put in jail at that time, got a six-month jail sentence. The 35-year-old child who had suffered lifelong disability just died.
DAN LIBENSON: Mm.
BENAY LAPPE: And now she is being charged with murder.
DAN LIBENSON: Wow.
BENAY LAPPE: Wow. Because the autopsy-
DAN LIBENSON: Mm-hmm ...
BENAY LAPPE: clearly showed that the death of this young man at 35 was th- the direct result of that injury at five months old.
DAN LIBENSON: Mm. Mm.
BENAY LAPPE: Yeah. So whatever complication... Yeah, go ahead.
DAN LIBENSON: No, I, I was just thinking, like, uh, does that, you know, where does that go in Jewish? Like, would that be in Masechet Sanhedrin, you know, because that's more about crimes or, but, w- but, or not?
BENAY LAPPE: Yeah, yeah. It, it, it... Yeah, I think it, it definitely leaves the realm of injuries and goes into Sanhedrin. Yeah. Mm-hmm. It, it, it would, it would be murder. It wouldn't be in this category, but it, it just reminded me of this-
DAN LIBENSON: Yeah ...
BENAY LAPPE: you know-
DAN LIBENSON: Yeah ...
BENAY LAPPE: later results.
DAN LIBENSON: Yeah.
BENAY LAPPE: Yeah.
DAN LIBENSON: Right. Right, right, right. No. Uh, it's, I see that.
That's... Yeah. Wow, what a story.
BENAY LAPPE: Mm, mm.
DAN LIBENSON: Uh, where, where are you reading these, these stories?
BENAY LAPPE: I get the New York Times Daily Digest.
DAN LIBENSON: Uh-huh. Uh-huh.
BENAY LAPPE: I love it. Yeah. And it gives me, like, one-liner things, and then little hot, you know, you click on it and then ...
DAN LIBENSON: Um, okay. So, um, so if the wound healed, so, uh, if, if you, if you injured somebody and, and there was a wound, and then it healed and then reopened, and again healed then reopened, he's obligated to heal him.
So what I, what I... Oh, and it healed fully, not obligated to heal him. So I mean, what I understand from this is, is, like, this is really sa- I mean, obviously, there's an obvious level of what it's saying, which is, like, if the wound reopens, you're responsible. But I think more broadly it's saying, you know, your responsibility doesn't end at some point, that, that there's a continual responsibility that you hold as long as the injury from this can keep being traced to this, uh, to this, uh, harm, then you're gonna keep being responsible.
And then I guess that really does connect to the story that you brought, because here is a case 35 years later, uh, it happened to be about death, but I mean, like, let's, let's say it was something less, but, uh, even 35 years later, it's the same wound that's basically still causing problems. You, you remain continually responsible.
BENAY LAPPE: Exactly. And I think this, th- that principle, the principle underneath this has enormous implications for social justice and reparations and-
DAN LIBENSON: Yeah ...
BENAY LAPPE: racial justice in our country. There are so many, right, manifestations- Yeah racist policy-
DAN LIBENSON: Yeah.
BENAY LAPPE: Wow That, right? I mean- Yeah.
DAN LIBENSON: No, I mean, like I, that's fascinating because it's like, um, I mean, the moment you said that I was like, "Of course," you know?
But, but I don't, I, I ha- I don't know if you've heard others, uh, use this, use this Mishnah in that, in that regard, but I think that you may have just, uh, won the Nobel Prize here or something. You know, like the Nobel Peace Prize, you know? Like I, I think that that's brilliant. Like, I think the idea that... And, and the, the, the, the really important notion here is that a text that is actually and sort of purports to be about tort law actually sort of establishes a principle that has much broader applicability.
And the standard way that Jewish communities think about Jewish stuff is that they will never, that will, that will never even occur to them, or they'll never even look at this text in that regard and say, "This is a text about, you know, injuring somebody physically and the damages," you know? But, but in, you know, I, I love the idea that, that this, that this text should be the, the, um, text behind which we march for, for reparations.
BENAY LAPPE: Absolutely. It- And you remember when we learned the text from, um, Eravin and Sotah, the, uh, where we defined what does it mean to be learned, gamir na, what does it mean to be savir na, to have savara?
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: And Rashi's definition where he spells out what it means to savara your savara is to-
DAN LIBENSON: Mm ...
BENAY LAPPE: go under...
Remember the, what's the essence underneath this idea? What other things can I analogize-
DAN LIBENSON: Right ...
BENAY LAPPE: to the, the new problem at hand to come up with a new solution? That- That, that's what, that's what svara's about. That is the definition of svara. Yeah.
DAN LIBENSON: Right. I mean, maybe, maybe a- after we, uh, finish this, this, um, unit, before we move on to the next one, we should talk some about this.
Because I, I'm just, I'm just very, like, fascinated and moved by what you just said, and I've ... but I'm not prepared for it, you know? 'Cause I didn't know we were, we were, you were gonna raise that. And, um, I- I didn't
BENAY LAPPE: either. It had never- Yeah ... occurred to me before. I've learned this text d- literally dozens of times.
That never occurred to me, until just now.
DAN LIBENSON: Yeah. I'm just so in ... so, I mean, ex- everything that you just said, including the, the, that the essence of svara is to essentially make connections between seemingly disconnected things, to learn one thing from another thing, to make analogies like you said. Um, and that the real svara is when you can make an analogy between something that appears to be, um, about a completely different topic, and is, and yet what it's, what it's, what's really going on here is that this, uh, perspective i- is, is the surface level.
I, I think of it as like an iceberg where there's, like, this little part above the surface, but there's this huge part under the water. And when you look at the part that's above the surface, like, it's true that that's what it is, but it's not seeing the whole story if you don't realize what it's standing on.
And so if you say, "Well, we have this principle here," and it's actually standing on this much larger principle that applies ... Y- you know, here we're talking about one person and a physical injury. In the case of reparations, let's say we're talking about an entire race and a injury that i- obviously included physical, but that was much broader than that.
And, uh, but, but if you understand th- that what this is about is not the surface layer but the beneath the surface layer, and you just say, "Okay, what would that beneath the surface layer say about, uh, reparations?" It, it, it gets t- starts to be a pretty, uh, easy argument at that point.
BENAY LAPPE: Yep.
DAN LIBENSON: If you take that seriously.
BENAY LAPPE: Exactly. A- and- It's pretty cool ... and, and, and even this suggest- this is not new. This is how Jewish law works. Right. This is ... Yeah. Uh, well, and it's the definition of svara.
DAN LIBENSON: You know, it's
BENAY LAPPE: the- That's right. Yeah.
DAN LIBENSON: That's right. This is amazing. Okay.
BENAY LAPPE: It's,
DAN LIBENSON: it's cool. Well, I feel like I got my, uh, moment for the, for the year.
BENAY LAPPE: Yeah, that was worth, that was worth, worth the price of the- Yeah ... admission ticket. Yeah. Um, it, for me, it's also an argument for, that makes the case for why learning is really important.
DAN LIBENSON: Yeah.
BENAY LAPPE: Right? And, you know, as much as I am not a ta- uh, daf yomi sort of bikyut learning broadly and thinly kind of person, the argument for doing that is when you have a lot of exposure to a, to- Mm-hmm ... you know, a lot of cases and other examples, you go, "Oh, wow, I can use that for that."
DAN LIBENSON: Yeah.
BENAY LAPPE: Even though this all by itself on the surface not that interesting, the stuff underneath it.
So, yeah.
DAN LIBENSON: Yeah. And I would also say it's the argument for, uh, havruta, you know, for, like, studying always with another person because, uh, I would just have passed right over this, you know, not, not seen that, so amazing. Yeah. You're welcome. Um, okay, so, um, just... So then, so if the, if the, um, wound continues to fester, you know, continues to open and reopen, then you continually remain responsible to heal that, and if the wound has healed fully, then you're not obligated to heal him.
I don't, I'm not sure that I totally understand that because of course you're not. Like, what is this, what case is this talking about?
BENAY LAPPE: I know. I don't know either. I don't know either. And obviously the implication is once the injured party heals fully, the injurer is not obligated to pay his medical bills after that.
But-
I, like, what's the haba mina? What's the thing you would have thought if the Mishnah hadn't said that?
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: Would anyone have thought that once someone was fully healed... I- is it that for sure the injurer shouldn't be imagined to be responsible for medical bills related to other things in your life?
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: It, it's a, it's unclear, and the Gemara oddly doesn't deal with it. The Gemara thinks that's not problematic even though it, I also trip over it.
DAN LIBENSON: Hmm.
BENAY LAPPE: And it's not, it's not typical for a Mishnah to spend, i- you know, use ink on something that is obvious.
DAN LIBENSON: Right. So maybe give that some thought and come back to it.
I mean- Yeah ... one thing that it's making me think about, but I don't think that's what's going on here, but I do think it's relevant, at least in Anglo-American law it comes up a lot, which is the question of, um, physical damage versus, like, psychological damage. Uh, so the wound might have healed, uh, but the, the psychological wound has not healed.
Um, and, you know, so that, so that you, let's say, let's say one could look at this. I don't think this is how it's meant, so I don't think this is actually the right interpretation of it. Uh- Mm-hmm ... but, you know, if we say, well, somebody's, um, uh, con- you know, has to continue going to therapy 'cause they've been traumatized by the fact that you injured them- Mm-hmm
even though the injury itself is healed, one might say your obligation has ended at the point where the wound is healed, uh, you know, the physical wound. You know, I, and I, I don't think that that's really what's going on here. I, I do think- Yeah ... I do, I do throw it into the conversation because I think it, it definitely is something that comes up a lot in law today.
And, and part of the reason is because psychological injury is much harder to assess than- Mm-hmm ... it's not so much because we wouldn't want to compensate for it if we could kind of, you know, really assess it, but it's obviously much harder to, um, assess- Mm-hmm ... fully than it is a physical injury, which you can just kind of look at and do tests and x-rays and whatever.
BENAY LAPPE: Yeah. It's, it's funny. It, yeah, we can put a sticky on that line. Yeah. Maybe it's just simply a, a slightly long-winded way of saying- The obligation of the injurer to pay the medical bills of the injured party end when the injured party is fully healed, period.
DAN LIBENSON: Yeah, yeah. Or is so- solely limited to the injury itself, the specific
BENAY LAPPE: injury.
A- and the im- and the sequelae of the- Hm ... original injury. Right. Right. I, I, I just love the opportunity to use that word, 'cause when can you use that word? Sequelae.
DAN LIBENSON: Well, we can use a lot of, uh, Latin, 'cause, you know, the- ... later we'll get to the subject of lex talionis, you know,
BENAY LAPPE: so- That's right.
DAN LIBENSON: Um, okay. So, uh, next category, rest.
Yeah. Uh, how? Uh, that right, rest is one of the categories of the damages at the beginning. So rest, how? Right. What, how do we assess it?
BENAY LAPPE: And, and let's note that in Hebrew, the word for rest is shavat.
DAN LIBENSON: Uh-huh, shavat.
BENAY LAPPE: Which we, we know from a slightly different form of that word, Shabbat.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: Which is about rest.
Mm-hmm. Okay, good. Uh- So what's the deal with rest? Yeah.
DAN LIBENSON: And well, there's a whole question about that, which, you know, shavat, uh, 'cause I've been, I've been actually, uh, teaching another class. We've been talking about Shabbat and the question of whether Shabbat or shavat really means rest or means, like, ceasing.
Uh-huh. Uh, and that's a little different from resting, but I, I'm not sure that that's, uh, essential to this c- to this conversation at this point. Mm. But anyway, s- so, but something, uh, something like the word for Shabbat. How? Uh, "We view him as if he were a watchman of cucumbers, because he already gave him money for his hand or money for his leg."
Right, so this is a-
BENAY LAPPE: Okay, this is- ... this is
DAN LIBENSON: not obvious one.
BENAY LAPPE: It, this is really complic- it looks actually simple, but it's m- really complicated. Okay. So y- ceasing is actually a good translation for shavat here. E- I think it's even better than rest, because this category of compensation is about how much the injurer pays to the injured party when the injured party has ceased working.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: And that's only during the recuperation period. So this is a category of compensation that starts when the injury happens and the person is recovering from their injuries. Mm. And ends when the person goes back to work. Even if they go back to work as a person with one arm or a person who isn't able to walk or whatever- They're able to do post-recovery, that diminution from what they used to be able to do is covered in the damage category.
DAN LIBENSON: Uh-huh.
BENAY LAPPE: That's what it means here when it says, um, because we've already compensated for the arm and the leg. This is the category of the person can't work at all. They're in bed, right? Mm-hmm. With their leg up or whatever. They're in the
DAN LIBENSON: hospital.
BENAY LAPPE: They're in the hospital. They can't work at all. They get a compensation.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: And how much compensation do they get? Minimum wage. Hmm. They get a cucumber watchman wage.
DAN LIBENSON: Uh-huh. Okay? Cucumber watchman is low. Low.
BENAY LAPPE: Low-skilled
DAN LIBENSON: labor. Mm-hmm.
BENAY LAPPE: Right. It's the person who sits and watches the field of cucumbers, and it doesn't require a lot of physical activity or skill or expertise. You just have to watch the cucumbers.
I suppose to make sure people don't steal them.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: I'm not sure if it's- '
DAN LIBENSON: Cause there's a big cucumber racket, you know, with the...
BENAY LAPPE: Right. Um-
DAN LIBENSON: Maybe it's to keep, like, animals away or something- Yeah ... which seems a lot less skilled labor than- Maybe ... I mean, to watch a guard that's actually, like, guarding p- from people is actually a bit of...
seems like a higher skilled category of labor.
BENAY LAPPE: Yeah. Yeah. Mm-hmm. This is actually problematic. It's, it's complicated in a bunch of ways, but I think it's okay to leave it for now at... I think the damage category kicks in from the moment of the injury.
DAN LIBENSON: Uh-huh.
BENAY LAPPE: And this is actually a duplicative compensation. It, it's a compensation on top of the damages during the time the person can't work at all.
DAN LIBENSON: Uh-huh.
BENAY LAPPE: Well-
DAN LIBENSON: Okay ... I
BENAY LAPPE: think we can leave it at that. I
DAN LIBENSON: think we could spend more time parsing that out. Yeah. But yeah, I don't think we need to do that right now. Okay, great.
So just to finish the Mishnah before we finish our time, w- we might wanna come back to this, 'cause it's a little bit, also a, a one that we wanna dig into. But the, the last category of damages is called humiliation. Yep. And so how do we assess that? And the Mishnah says, "It all depends on the one who humiliates and the one who is humiliated."
BENAY LAPPE: Yeah. So that's kind of opaque, and Rashi jumps in to clarify. And what Rashi says is what this means is that- If the, i- is that the social standing of the injurer and the injured party are taken into consideration in determining the amount of money the injurer has to pay in this category of humiliation.
Because in a society where there are significant social strata differences, the amount of emotional impact of an injury will depend on your relationship as an injured party with the injurer. So says Rashi, if someone of a higher status injures someone of a lower status, the injury is something.
DAN LIBENSON: Mm-hmm.
BENAY LAPPE: If the injurer's of a lower status and injures a higher class person, the assumption in that society is that the higher class person is going, "You, you person of no
You, you nothing. You caused me this broken leg?" Oh, but if the president gave you a broken leg, right? I mean, it, it's like a J- Jackie Mason A Love A Shalom routine.
DAN LIBENSON: Well, it reminds me of that joke about the, you know, the rabbi and, and the cantor at the Yom Kippur services, and they come up to the bimah and say, "I'm just nothing but dust and ashes."
And the cantor, "I'm nothing but dust and ashes." Then some, like, poor person is so moved and he says, like, comes up, "I'm nothing but dust and ashes." And the rabbi turns to the cantor, "Look who thinks he's nothing but dust and ashes."
BENAY LAPPE: Exactly. Exactly. So the, they, they recognize that someone of a higher status who's injured by someone of a lower status is gonna experience more embarrassment knowing that everybo- ev- the whole town knows that he got his hand cut off by, you know, this little schlemiel.
Uh-huh. And so his compensation is greater. He gets more money- Uh-huh ... from the schlemiel who injured him. Uh-huh. Rather than the person, you know, the mayor cuts off your hand-
DAN LIBENSON: Uh-huh ...
BENAY LAPPE: you don't get that much because- Nothing ... that's not as embarrassing.
DAN LIBENSON: Right. Right. Um, that's fascinating. I mean, I, I, you know, like, this, this raises...
Like, this feels to me like it kind of fits in the category in Anglo-American law that we call emotional distress. You know, that that's part of a, a compensation for a tort, that it's, it's kind of, you know, trying to, trying to get at how much did this injury cause you emotional, uh, damage beyond the physical.
You know, just because you were so upset, uh, not because you lost w-... You... It could result in lost wages. W- It is hard to assess. It's hard to assess how much distress you have. It's hard to assess what the value of that distress is. So it's a very problematic category in American law. But, uh, but it s- sort of seems like it fall...
It's, it's getting at the... I mean, th- this is put in a way. So I don't know if you think that it is kind of meaning to get at the same category, or- I
BENAY LAPPE: do ... '
DAN LIBENSON: cause the, you know, s- 'cause that's a question of, like, what would we say about the... 'cause this humiliation, this idea. We would kind of dismiss, I think, the idea that you just presented.
You know, like, in our day, we would say, like, "It's not... You... We're not gonna award you for being embarrassed that a poor person hurt you." Like, that's-
BENAY LAPPE: Right ... right. I think I, I probably overstated as if that were the entirety. I think the real essence of this category of embarrassment and humiliation is how it feels to walk through your life- Uh-huh.
DAN LIBENSON: Uh-huh ...
BENAY LAPPE: for the rest of your life with, uh, a, a wound, a missing limb, a scar. That's the essence of the boshet, the humiliation.
DAN LIBENSON: Uh-huh.
BENAY LAPPE: But that's either exaggerated or minimized depending on the social standing of the two parties.
DAN LIBENSON: Uh-huh.
BENAY LAPPE: So it's not that the boshet is that embarrassment caused by- Or it's, it's the, it's the embarrassment of walking through life with this wound and people looking at you and staring and blah, blah, blah.
Mm-hmm. Which is sort of dialed up or down depending on the social standing, I think.
DAN LIBENSON: Mm-hmm. Which is also obviously problematic in so many ways today. We understand that, you know, that sort of, sort of ableist... I mean, I would be very interested in, in, in learning this text, understanding it from the perspective of a disabled person who might read it today and say, "Well, I...
Shouldn't be embarrassing." For, you know, I mean, and then so again, maybe, maybe then or, you know, the que- so the question to my mind is, like, do we rescue this idea by saying they use the word humiliation, we wouldn't use, we don't think it's humiliating, we don't use that. Mm-hmm. We wouldn't use that word anymore, but we think it's really getting at the category of emotional- Mm-hmm
distress, and that's complex, and it's not only because you're embarrassed. There's all kinds of factors that come into it. I don't know, you know, or what would be a, what would be a more-
BENAY LAPPE: Mm-hmm ... a
DAN LIBENSON: way to look at this once we have a m- more, you know, I would say, enlightened view of, of, uh, disability today.
BENAY LAPPE: Yeah. I, I, I love that question. And, and it also feels like it recognizes the reality
DAN LIBENSON: Right. Right
BENAY LAPPE: And it recognizes the disparity of social status. Uh, it recognizes it and it says, like, that, that's, that's the reality right now, and it does have implications even though it shouldn't. The rabbis re- in the Gemara really, um, they really wanna flatten out that society.
But you're right. Uh, um- I, I think there are, there are things under here that A person living with disability in a, a certain way would have insights that- Mm-hmm ... that we don't have. I-
DAN LIBENSON: Mm.
BENAY LAPPE: Yeah.
DAN LIBENSON: Okay. Well, um, f- we're out of time for today, so... But we got through the whole Mishnah, so that's good. So we will, um, pick it up next week, uh, or possibly the week a- We'll, we'll be back next week, but we may or may not have a guest.
Uh, but we'll pick this up, uh, next time, uh, and, uh, jump into the Gemara, which, as you say, has, uh, a lot of, what did you call it? A patchwork? No. Uh-
BENAY LAPPE: Sampler.
DAN LIBENSON: Sampler. A sampler of all these, uh, great, uh, techniques of, of Talmudic analysis, so that'll be fun.
BENAY LAPPE: Exactly.
DAN LIBENSON: All right, so we'll see you next week, Benay.
BENAY LAPPE: Okay, thanks, Dan.
DAN LIBENSON: Bye.
BENAY LAPPE: Bye.
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