Range of Five Payments

Question

It is known that if a man strikes another man, the damager must pay "Five Payments" - Nezek (damage), Tza'ar (pain), Ripui (doctors' bills), Sheves (unemployment), and Boshes (embarrassment). (This is an explicit series of Mishnayos in Bava Kama Chapter 8.)

What is the halacha if Reuven were to, c"v paralyze Shimon such that Shimon is permanently stuck in a wheelchair? He obviously has to pay the same Five Payments. But is there a chiyuv for Reuven to pay for the fact that Shimon's life will never be the same? Is there a payment for forcing him into a lower quality of life, to which he will now have to become adjusted? Is there anything that can force Reuven to pay for Shimon's emotional pain from being unable to walk?

Is it Nezek?

• No, the payment for damages is calculated by finding the loss in his value on the slave market. There's nothing in the calculation regarding payment for his quality of life, only what he's able to accomplish as a slave.

Is it Tza'ar?

• No. Tza'ar is how much one would demand to undergo pain. The Mishnah gives the example of a fingernail injury "in which there is no wound," so it would seem to apply to physical pain only, not emotional pain.

Is it Ripui?

• I think we can all agree that quality of life isn't included in doctors' bills. As @DoubleAA pointed out, Reuven would be liable for the disability tools, but I don't see how there can be a payment for a lower quality of life.

Is it Sheves?

• Still no. First of all, Shimon might have been able to get his job back. Even if he couldn't, he likely would have been able to get another job. As the Mishnah makes clear, Sheves is paid as if he's a cucumber watcher, i.e. absolute minimum wage. As long as he gets any job, Sheves will not cover his new quality of life.

What about Boshes?

• Perhaps you could argue, as @DoubleAA did, that there's a measure of embarrassment of being that nebach rolling around on the street in his wheelchair, but it doesn't exactly cover his lower quality of life.

So there's three options I see here at this point. Possibly the likeliest is that I've completely misunderstood what one or more of these categories cover, and indeed emotional pain is covered by one of them. The second option is that there's another payment I'm unaware of. And the third option is that, indeed, Chazal did not make a payment to cover emotional pain. So which is it?

Answer 1

The Mishnah (Babba Kama 90a) gives examples of shaming people and the various fines owed for each offense.

The Mishnah on 92a, then goes on to say: "..even though he paid the fine, he is not forgiven until he seeks forgiveness from him..."

The Gemara immediately comments: "Tannu Rabbanan: All these fines are merely payment for the embarrassment caused. However, for the (emotional) pain, even if he offered all the rams of Nevayot in the world, he is not forgiven until he seeks forgiveness from him...."

Rashi explains the meaning of the word "pain" used here as opposed to embarrassment itself. "BUT THE PAIN" : "That he worries over his shame; for that there is no forgiveness."

We see from here that the Boshet payment does not cover the mental anguish caused at all. In fact, the "Tzar" payment doesn't cover it either (or any of the 5 payments). He just has to secure forgiveness from the victim somehow.

This makes sense when we also read Babba Kamma 85a. The Gemara asks how to calculate the payment for physical pain. The Gemara suggests that we establish how much this fellow would wish to earn if a sadist would pay him for the right to chop his hand off with a sword, instead of using a painless method (like a withering oil).

The Gemara quickly rejects this idea by simply saying: "Are we dealing with the insane??!!" No one would accept any amount for such a thing! (or the amount would be so astronomical as to be absurd). The Gemara does settle on calculating how much the victim would pay to reduce his sentence from a chop to a painless method (assuming that either way he would lose the arm).

Now if it is so for the temporary pain of a chopped hand, then what is the calculation for living the ruined life suggested by the OP? Or what is the fee the victim would pay to get his normal life back??

Since we are now dealing with intangibles, we can see how hard or outright impossible this would be to settle with money. Hence, anguish can only be paid for with forgiveness.

R' Meir of Rottenburg holds that O'naas Devarim (the sin of hurting someone's feelings with words..which includes all kinds of mental and emotional anguish) is actually punishable by lashes. He explains this is because money doesn't help. So, another punishment that is fitting is used instead.

The Mordechai also holds that the punishment is lashes. Those that argue with them about lashes, admit that money is no substitute either. (The Bes Yosef questions their opinion about lashes in Choshen Mishpat 1).

Even if there were some clear way to calculate such a payment, we are stuck nowadays with the fact that Beis Din today lacks Semichah from Eretz Yisrael and therefore cannot enact fines. (Choshen Mishpat 1:2)

However, Rav Yitzchak Zilberstein discussed a case with his father in-law, Rav Elyashiv Zt"l. A dentist had slapped a patient. The patient was so outraged and the dentist was so remorseful, that the dentist offered and paid $10,000.00 for the patient to forgive him. This was considered about 4-5 times the amount the Gemara prescribes for a slap to the face.

He points out that Bes Din today would have the right to impose a ban (cherem) on the offender until he placated his victim with a proper payment (Choshen Mishpat 1:5) even if they lack proper semicha authority. I am extrapolating, that such a grave offense like the OP envisions c'v, especially if done on purpose, would certainly trigger a Bes Din's right to enforce a ban until the offender offered a proper compensation. But I do not know if the case is truly similar.

Furthermore, he does quote his father in-law as saying that if the victim truly feels that he wants that sum and no less, and if the offender is really agreeable, then the transaction is good and effective. It is not theft to accept the payoff. However, if the victim is pious, he should not demand such a sum.

In the end, it seems everything is up to the intent, the feelings of both parties (especially the victim), and the healing of time?

Answer 2

(Note: The following is from my own Sevaras based on my current understanding I do not claim that this answer is valid. Take the following with a grain of salt.)

Emotional pain different from Boshes is something which the individual feels separate of the other five payments, in that it can not be measured objectively from a Judge but rather is stated judged by the individual.

Concepts discussed in Shas, for example in the Mishna in Kesubos 2:9 of אין אדם מעיד על ידי עצמו and in Sanhedrin 9b of אדם קרוב אצל עצמו which seem to imply that allowing a party involved to have an active role in deciding what a Halachic decision would create a possibility for corruption, so Chazal set it up so as to minimize the possibility of dishonesty and maximize impartiality in judging cases.

That being said to have that as a measurement for a fine would mean that it is up to the damaged to decide, which leaves no room for scrutiny by Beis Din. This would create a possibility for dishonesty and removes the impartiality in its assessment of the payment, which would invalidate it as a form of fine.

(Take this with a grain of salt)

Hope this is insightful.