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Bava Kama, 84

1) THE RULE OF "MISHPAT ECHAD" -- GIVING THE SAME PUNISHMENT TO ALL PERPETRATORS OF THE SAME CRIME

QUESTION: Raban Shimon bar Yochai suggests a source to show that "Ayin Tachas Ayin" (Vayikra 24:20) means monetary reimbursement and not literally blinding the person's eye. His source is that the Torah says, "Mishpat Echad Yiheyeh Lachem" (Vayikra 24:22) -- all people who damaged in a certain way, such as by blinding someone, shall be punished in a similar fashion. If the person who damaged someone else is himself already blind, then he obviously cannot be punished by blinding, and thus not all damagers will be punished in a similar fashion. It must be that all damagers must *pay money* for the damages that they did, and in that way all damagers are punished in the same fashion regardless of their physical state.

The Gemara rejects this proof by saying that if a person is already blind and thus cannot be blinded, it does not counter the rule of "Mishpat Echad," since a blind person has a *lack* of punishment, and not a *change* of punishment, while "Mishpat Echad" proscribes giving a *different* punishment (and not *no* punishment). The Gemara proves that exempting certain people from punishment does not contradict the rule of "Mishpat Echad," from the fact that a Tereifah who kills someone is exempt from punishment, even though a healthy person who kills is punished with the death penalty. How do we know that a Tereifah who kills is exempt from punishment? RASHI cites the Gemara in Sanhedrin (78a) that explains that he is exempt because of the rule of "Edus she'Iy Atah Yachol l'Hazimah." This means that since the witnesses who testified against the Tereifah cannot be killed if they are found to be Zomemim, their testimony is not accepted even if they are not found to be Zomemim. (When witnesses testify that a Tereifah killed and are then found to be Edim Zomemim, the reason the witnesses cannot be killed is because they did not conspire to kill a healthy person and therefore we cannot kill them (healthy people) as a punishment, since the Torah says that the punishment must be equal to what they intended to do to the victim.)

REBBI AKIVA EIGER (in Gilyon ha'Shas) asks how can the Gemara bring proof from the Halachah of a Tereifah? Perhaps "Mishpat Echad" indeed requires that all damagers be punished in the same way. The reason the Tereifah is not punished is not because the Torah did not ascribe to him an appropriate punishment. Rather, it is because we cannot know whether or not he actually killed; the witnesses who testify about him are not reliable, since they know that they will not be punished if they are found to be Zomemim. The Gemara earlier (75b) explains that when witnesses cannot be punished as Zomemim, their testimony is not reliable, since they are not afraid of retribution in the event that they are caught to be lying (see RASHI 75b, DH Heichi Dami). If it would be possible to provide reliable testimony that a Tereifah killed someone, then we *would* punish the Tereifah. The Gemara in Sanhedrin (78a) writes that if a Tereifah kills in front of a Beis Din (and thus it is not necessary to have the testimony of witnesses to prove that he killed), then he is punished with Misah since the Beis Din knows that he killed.

How, then, does the exemption of a Tereifah from punishment contradict the rule of "Mishpat Echad?"

ANSWERS:

(a) The NETZIV (in Meromei Sadeh) suggests an alternate interpretation of our Gemara, in contrast to that of Rashi who explains that the Gemara is based on the Gemara in Sanhedrin. The Netziv explains that the Gemara has nothing to do with "Edus she'Iy Atah Yachol l'Hazimah." Rather, the Gemara is showing that when a Tereifah kills in front of Beis Din and we punish him with Misah, he cannot be killed in the same way that a healthy person who kills is punished, since a healthy person loses a healthy life, so to speak, while a Tereifah loses a weak life. Nevertheless, we punish him in whatever way that we can. In a similar manner, if a person with weak eyesight blinds another person, we will punish the perpetrator by blinding him, since that is the closest that we can come to giving him the punishment that any other person receives for blinding someone. Similarly, if a person who is completely blind blinds another person, although we cannot punish him through blinding, it will not contradict the rule of "Mishpat Echad," since we have done to him whatever we can (which is nothing).

Rashi does not accept this approach because the words of the Gemara imply that it is trying to prove that it is not a contradiction to "Mishpat Echad" when a Tereifah is *exempt* from punishment for his act of killing, and not when a Tereifah is punished for killing. In addition, Rashi might not accept the logic of the Netziv that if a partial punishment does not contradict "Mishpat Echad," then a lack of punishment also does not contradict "Mishpat Echad." Perhaps exempting some people from any punishment while punishing others for the same act *is* a contradiction to "Mishpat Echad."

(b) The KOVETZ SHI'URIM (2:39:3) suggests an alternative explanation for our Gemara. He points out that the RAMBAM (Hilchos Nizkei Mamon 10) writes that when a Tereifah kills, he is not put to death because he is already considered dead. This seems to contradict the Gemara in Sanhedrin that gives a different reason for exempting a Tereifah who kills. The Gemara in Sanhedrin exempts a Tereifah because the testimony against him is not testimony that allows for the possibility of the witnesses becoming Edim Zomemim, and therefore the Tereifah *is* punished with Misah if he kills in front of Beis Din (see Ra'avad there). What is the source for the Rambam's ruling that a Tereifah is always exempt from Misah because he is considered to be already dead?

The Kovetz Shi'urim answers that the Rambam's source is our Gemara, which implies that the reason the Tereifah is exempt is not simply because we cannot rely on the witnesses who testify against him. Rather, he is exempt even though we are certain that he killed (such as when he killed in front of Beis Din). Our Gemara must be exempting a Tereifah from Misah for a different reason, and not for the reason given by the Gemara in Sanhedrin. It is from here that the Rambam learns that a Tereifah is exempt because he is considered to be already dead.

(See also DIBROS MOSHE #56 who explains at length that the Amora'im argue over the reason why a Tereifah is exempt from Misah, and that is how he explains our Gemara.)

(c) The question of Rebbi Akiva Eiger is based on the fact that when the Edus is "Edus she'Iy Atah Yachol l'Hazimah," the testimony is not reliable, as Rashi writes (75b). However, it is possible that Rashi explained "Edus she'Iy Atah Yachol l'Hazimah" in this manner only according to the opinion of Sumchus, who makes an exception to this rule in a case where we know that the testimony is reliable (for example, when the defendant himself agrees that the witnesses saw him do what they claim to have seen him do). However, the Chachamim -- who argue with Sumchus and do not accept testimony that is "Iy Atah Yachol l'Hazimah" even when we know that it is reliable -- follow different logic. They maintain that Edus must be "Yachol l'Hazimah" because of a Gezeiras ha'Kasuv (Devarim 19:18), which teaches that we must ask the witnesses seven interrogatory questions with regard to the time and place of the event ("Chakiros") in order to enable their testimony to be proven false through Hazamah and receive the same punishment that they tried to inflict, the punishment of Edim Zomemim. (See Insights to 75:3.) This is, indeed, the implication of Rashi in Pesachim (12a, DH d'Havah Lei Edus) and in Sanhedrin (40a, DH b'Ezeh Yom, and DH Chakiros).

Our Gemara, therefore, might be following the opinion of the Chachamim who argue with Sumchus. That is why the Gemara proves from a Tereifah's exemption from punishment that "Mishpat Echad" applies even in a case in which some people would be exempt from punishment. A Tereifah is always exempt from punishment even when we know for certain that he killed, and nevertheless a healthy person is punished for the same act. (M. Kornfeld)

QUESTIONS: D'Vei Rebbi Chiya learns that "Ayin Tachas Ayin" means monetary compensation, from the words in the verse regarding the punishment of Edim Zomemim. The Torah (Devarim 19:21) states that we must punish the Edim in the way that they wanted to punish the defendant. Why does the verse have to add the words, "Yad b'Yad" ("hand for hand")? It must be teaching that the punishment that the defendant would have received for taking off someone's hand is not what we might have thought it to be. Rather, the punishment is t o pay money, and therefore the Edim Zomemim are punished by having to pay money rather than by losing their hands.

(a) Why does d'Vei Rebbi Chiya not make an identical inference from the verse in Vayikra (24:20), regarding the Halachah of compensation for bodily damage, which it was discussing until now? The verse there already says that "whatever he (the damager) did must be done to him," so why does it add "Ayin Tachas Ayin?" It must be to teach that we do not cause physical damage to the damager!

(b) The Gemara explains that after the verse says "Yad b'Yad" with regard to Edim Zomemim, it adds "Regel b'Ragel" since it already said "Yad b'Yad" and the two expressions are found together. Why, though, does the verse say, "Nefesh b'Nefesh, Ayin b'Ayin, Shen b'Shen," *before* saying "Yad b'Yad?" If the main point is "Yad b'Yad," and the other phrases are mentioned merely because of the similarity in expressions with the verse in Vayikra, then they should *follow* "Yad b'Yad," and not be written *before* "Yad b'Yad!" It must be that they, too, are teaching us something. What, though, are these expressions teaching?

ANSWERS:

(a) The verse in Vayikra -- that says that we punish the perpetrator by blemishing him in a way similar to the way he blemished his fellow man -- is not clear enough by itself. Perhaps this only applies to a non-permanent blemish, or to limbs that are less important (if it really means that the perpetrator is punished physically). That would be why the verse would have to specify "Ayin Tachas Ayin..." -- to show exactly how the punishment should be administered. However, the verse with regard to Edim Zomemim is very clear, since we already know what punishments Beis Din can administer to a criminal, and the verse says that those same punishments that would have been administered to the criminal are administered to the Edim Zomemim. Therefore, it is not necessary for the verse to say "Yad b'Yad" if not to teach something new.

(b) The Torah writes "Nefesh b'Nefesh" with regard to Edim Zomemim to teach that the Edim are not killed unless they succeeded in having the verdict, the G'mar Din, issued by Beis Din.

The Torah says "Ayin b'Ayin, Shen b'Shen" with regard to Edim Zomemim before adding "Yad b'Yad" in order to show that "Yad b'Yad" is teaching a Halachah that applies to the other place in the Torah where "Ayin Tachas Ayin" and "Shen Tachas Shen" are mentioned. The Torah is saying that the punishment for damaging someone's eye or tooth is to be administered in terms of something that is given over "from hand to hand," meaning money, rather than physical punishment. That is why the verse there adds "Yad b'Yad."

The Gemara asks why does the verse add "Regel b'Ragel," since both Yad and Regel are not mentioned in the verse in Vayikra which discusses the punishment for damaging a person. The Gemara answers that Regel is included in the verse only because of its similarity with the verse in Shemos (21:24) which mentions both Yad and Regel, and Ayin and Shen.

84b