Full Compensation for Assault

Bava Kama (8:7) | Yisrael Bankier | 17 years ago

We have been learning about the five different components of compensation one must pay in the event he physically injures another person: nezek (physical damage), tza’ar (pain), ripui (medical costs), shevet (lost labour opportunity) and boshet (shame). Following a discussion about calculating boshet the Mishnah teaches as follows (8:7):

Even though he pays him, he is not forgiven until [the offender] asks [the victim for forgiveness]…

A number of points need clarification. Firstly, what is not forgiven? If the offender has paid all components of compensation to the victim in full, why is there anything left for him to do? We do not find a requirement to ask for forgiveness after a person has paid compensation for damage caused to another person’s property. Is the full responsibility of the offender not just a function of the liability?

The Gemara brings a Beraitah that presents this concept with different wording:

All fixed payments [described in the Mishnayot] are for boshet but for tza’ar even if he brings all [the sacrifices] in the world, he will not be forgiven until he asks the victim for forgiveness…

What is the tza’ar that is referred to in the Beraitah? If it is literally the component of compensation referred to as tza’ar then why did we learn that there are means of calculating its monetary value if it is dependant on receiving forgiveness from the victim?

Rashi explains that tza’ar referred to in the Beraitah is not the physical tza’ar that resulted from the injury. Instead he explains that it is the tza’ar that resulted from worrying about the boshet. In other words, once the offender has paid the five components of compensation he has nearly completed everything necessary. There is one component of damage that has not been covered with monetary compensation and that is the enduring emotional strain and fear of embarrassment. In order for compensation to be complete, he must ask the victim for forgiveness.⁵

The Rambam (Chovel U’Mazik 5:9) however only refers to the five components of compensation cited above. Furthermore he explains that even though full compensation is paid, as apposed to when a person pays compensation for damaging his friend’s property, atonement (for the entire incident) depends on whether he receives forgiveness from the victim.⁶ Why?

To answer this we shall look at how the Ra’avad understood the above Beraitah:

The explanation is that boshet is like a sickness in that the person goes pale, his limbs are weak, and his heart is concerned. We said [that we can assess] how much one would be willing to be paid to endure such a “sickness.” However the fact that [the offender] wanted to cause pain to another, Heaven will not forgive him until he appeases the victim…

This explanation of the Ra’avad relates to the point we raised two article above. In other words, with respect to the liability that the offender has to the victim, it can be fully satisfied with monetary compensation. However the fact that this offender engaged in such a crime, wanted to cause pain to another, demonstrates a deeper problem in the offender himself. For this Heaven will not forgive him, even though the monetary component is fully satisfied, unless he asks for forgiveness from the victim; unless he attempts to remedy the personal flaw.

⁵ The Tur (Choshen Mishpat 412) rules according to Rashi that forgiveness for the pain resulting from the boshet is required for full atonement.

⁶ The Shulchan Aruch (Choshen Mishpat 412) rules according to the Rambam.

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