4b----------------------------------------4b

1)

DO WE COLLECT PAYMENTS FOR DAMAGE TO MAN IN CHUTZ LA'ARETZ? [Nezikim: Chutz la'Aretz]

(a)

Gemara

1.

(R. Oshayah): There are 13 Avos Nezikim: ...Nezek (lifelong loss in earning potential), pain, Ripuy (medical expenses), Sheves (temporary unemployment), and Boshes (embarrassment); and the four Avos of our Mishnah.

2.

(R. Chiya): There are 24 Avos Nezikim: Kefel, ... and the 13 Avos of R. Oshayah.

3.

R. Oshayah omitted these other 11 Avos, for he lists only principal, but not fines.

4.

84a: An ox chewed the hand of a child. Rava commanded to evaluate what he would be sold for like a slave.

5.

Question (Rabanan): You taught that in Bavel we do not collect anything that requires an evaluation of one's slave value!

6.

Rava: I did not say that the damager must pay this. Rather, if the victim grabs payment, we must know how much he may keep.

7.

(Rava): If a man or ox damaged an ox, we collect this in Bavel. If a man or ox damaged a man, we do not collect this in Bavel.

8.

We don't collect damages to a man, because the Torah says "Elohim (expert judges)." Only Semuchim (judges ordained in Eretz Yisrael) may judge this.

9.

Question: Also regarding damages to an ox, it says "Elohim"!

10.

Answer: We (judges in Chutz la'Aretz) are Sheluchim of Semuchim in Eretz Yisrael to collect damages to an ox, like we say about admissions and loans.

11.

Question: Also for damages to a man, we should be Sheluchim to collect!

12.

Answer: We are Sheluchim only to collect common things in which the victim loses money. It is not common for a man to hit a man, so we do not judge it.

13.

Objection: Boshes and Pegam (blemish, of a virgin Na'arah who was raped or seduced) are common. We should be Sheluchim to collect them!

14.

Answer: Indeed, we are! Rav Papa collected 400 Zuz for Boshes.

15.

Rejection: Rav Papa erred. Rav Chisda asked Rav Nachman about payments for Boshes, and Rav Nachman replied that we do not collect them in Bavel. One who is embarrassed does not lose money, so we do not judge it.

(b)

Rishonim

1.

The Rif and Rosh (8:2) bring the Gemara on 84a.

2.

Rambam (10): Judges in Chutz la'Aretz do not collect anything that requires an evaluation like a slave. Therefore, if one wounded another, we do not collect Nezek, pain or Boshes. They do collect Sheves and Ripuy, for these cause monetary loss. The Ge'onim said so, and we regularly collect these in Bavel.

i.

Question (Kesef Mishneh): The Gemara said that we do not judge damage of man to man, even though there is Chisaron Kis, for it is uncommon! Perhaps this is letter of the law, and we collect it for Tikun ha'Olam. However, above the Rambam did not list man who damaged man among cases of uncommon damage with Chisaron Kis. He holds that 'we do not collect damage of man to man even though it has Chisaron Kis' refers to Nezek, and all the more so pain and Boshes, which have no Chisaron Kis. We judge Sheves and Ripuy, which have Chisaron Kis. Rava taught that we do not collect anything that requires an evaluation of slave value. This refers only to Nezek. If not, Rava should have said that we do not collect damage of a man to a man.

3.

Rosh (Sanhedrin 1:1): In Bava Kama we concluded that wounding is not common, so we do not collect it in Bavel.

i.

Hagahos Ashri (8:2, citing Or Zaru'a): R. Tam says that we collect other Avos Nezikim (not only Shen and Regel), e.g. Sheves, Ripuy, Boshes...

ii.

Gra (14): Hagahos Ashri holds that we collect the Avos of our Mishnah in Bavel, except for Nezek, for we do not evaluate slave value. Boshes is a printing mistake. The Gemara says that we do not collect it, for there is no Chisaron Kis. The same applies to pain. We collect the Avos of R. Oshaya, which are not fines. We do not collect for Ones u'Mefateh (rape or enticement), even though there is Nezek, pain and Boshes, for we hold that indiscernible damage is not damage. The Gemara did not ask why we do not collect Sheves and Ripuy, for we collect them!

(c)

Poskim

1.

Shulchan Aruch (CM 1:1): Only judges with Semichah in Eretz Yisrael judge fines that Chachamim fixed, e.g. for making a noise in Ploni's ear or slapping his face.

2.

Shulchan Aruch (2): If a man wounded a man, judges without Semichah in Eretz Yisrael do not collect Nezek, pain, Pegam, or Boshes. They do collect Sheves and Ripuy.

i.

Darchei Moshe (2): The Terumas ha'Deshen (2:208) says so. I never saw anyone collect Sheves. We just obligate Refu'ah and fine him like the judges deem proper.

ii.

SMA (10): Pegam is in place of Nezek regarding Ones u'Mefateh. The Gemara said that there is Chisaron Kis and it is common, i.e. all know the difference in value between a virgin and non-virgin, so we can assess it. Ones u'Mefateh of a virgin is uncommon, so we are not Sheluchim to judge it.

iii.

SMA (11): We collect Sheves and Ripuy from every wounding, even cutting off a hand which is uncommon, since Sheves and Ripuy are common in other wounds. The Rambam does not distinguish between kinds of wounds.

iv.

Prishah (4 DH v'Lo Kol): The Tur says 'we do not collect in Bavel everything that one pays due to his admission, e.g. Pegam, Boshes and Kofer.' All of these accompany a fine, i.e. 50 Shekalim for Ones u'Mefateh or stoning the ox. Likewise, we do not collect in Bavel anything that accompanies a fine.

v.

Taz (DH Aval): The Gemara suggested that we should collect Boshes and Pegam, and answered why we do not collect Boshes. This connotes that we collect Pegam! Really, the correct text asked only about Boshes, which is common. How could we ask about Pegam? Perhaps we indeed collect it!

vi.

Beis Yosef (DH u'Mah she'Chosav umi'Divrei): It seems that the Rif and Rosh hold that we do not judge any damages of man to man. They explain like Rashi, that we do not collect in Bavel 'anything that requires assessment.' This includes Sheves and Ripuy. However, the Rif and Rosh did not explicitly rule about this, and the Rambam says that the Ge'onim ruled like this, and we regularly collect Sheves and Ripuy in Bavel, so we follow this.

3.

Rema: Some say that we do not collect even Sheves and Ripuy.

i.

Gra (14): Rashi (Sanhedrin 2a DH v'Chavalos) holds that all five damages to man require three (expert judges). We are not Sheluchim, for it is uncommon.

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