Intent to Shame

Bava Kama (3:10) | Yisrael Bankier | 3 months ago

The Mishnah (3:10) contrasts the laws that apply when one's animals hurts someone and when a person injures another. One difference raised is if a person hurts another. Other than paying for the damage caused (nezek), they must also compensate them for the shame (boshet). That is not the case if one's ox causes damage. We shall focus on this point.

The Bartenura provides two explanations. The first is that the obligation to compensate for the shame is derived from a pasuk that refer specifically to an "ish" (person) and not shor (ox) (see 42a). The second reason is that that one is obligated to compensate for shame when they shamed intentionally, and an ox cannot have intent to shame.

The Tosfot Chadashim however finds the Bartenura's second answer difficult. He cites the Gemara that one is obligated to compensate for shame as long as there was intent to cause harm, even if there was no intent to shame (in the process). The Tosfot Chadashim directs our attention to the Tosfot Yom Tov to stress this point.

The Tosfot Yom Tov cites the Nemukei Yosef who notes that when a person injures another, they are obligated to pay five elements of compensation. In addition to the two already mentioned, there is also tzaar (pain endured), ripui (medical costs) and shevet (lost opportunity to work). These are also only applicable when a person causes the damage but not an ox. Why then did the Mishnah only select boshet?

The Nemukei Yosef explains that the Mishnah compared a person and animal to contrast the rulings under the same circumstances. In other words, the ox can only really have intent to harm, but not intent to cause shame. In that case, where there is intent to harm and no intent to shame, the ox is exempt, and the human would be liable. Put simply, as long as the human had intent to cause harm, even if he did not have intent to shame, he would be liable to boshet.

R' Akiva Eiger cites the earlier Gemara (27a) as the source for the requirement for intent to cause damage for one to be liable to boshet. The Gemara there discusses the case of ve'shilcha yada ve'hechzika bimvushav. The Gemara understands that the additional wording ve'hechzika teaches that as long as there is intent to cause damage, she would be liable, "even if there was no intent to cause shame".

R' Akiva Eiger however finds that Gemara difficult. Granted that it was necessary to teach that intent to cause damage is necessary, his difficultly is the Gemara adding "even if there was no intent to cause shame". That point should be self-evident. He directs our attention to the later Gemara (cited above in the Bartenura) that excludes an ox from compensating for shame. If you think that intent to shame was necessary, then we would not need a pasuk to exclude the case of an ox. He leaves this question requiring further thought.

Perhaps we can find an answer based on the Raavad's understanding of that Gemara. The Shita Mekubetzet (27a) cites the Raavad who asks how one can separate intent to harm and intent to shame. Explains that boshet is part of nezek. Where do we find nezek without boshet? The Raavad answers that it would be in a case where the injury would be in a concealed place. Consequently, when the Gemara says "even if there was no intent to cause shame" it means that even if the person intended to give the other a concealed injury but injured him in a place that would cause boshet. The Gemara teaches that he would nevertheless be liable to boshet.

We find from the Raavad that when the Gemara is discussing that intent to shame, it does not mean that the culprit wanted to embarrass the individual. Indeed, it is self-evident that that is not required. Instead, according to the Raavad intending to inflict an injury that would be embarrassing, is intent to shame. The Gemara is instead addressing that case, where the type of injury intended, and the injury inflicted differ. Even if the type of injury intended was not embarrassing, yet it ended up being so, one would still be liable to boshet.

Download