כ״ח באב ה׳תשע״ו (September 1, 2016)

Bava Kamma 93a-b: When One Asks to be Hurt

We have been discussing cases where a person will be held responsible for injuring his fellow. What if the person who was injured requested that his attacker beat him? What if he assured him that he would not be held responsible for the injury?

According to the Mishna (92a) we distinguish between personal injury and damage done to property. If a person asked to be blinded, have his arm cut off, or his leg broken, the person who causes the injury will still be held responsible – even if he assures him that he will forgo payment. If he asked his friend to tear his clothing or to break his vessel he will be responsible, although if he assured his friend that he would forgo payment, then he will not be held responsible.

Several explanations are given by the Gemara to explain the difference between personal injury where the attacker will always be held responsible, and damage done to property where under certain circumstances he will not.

  • Rav Sheshet says that it is an issue of pegam mishpahah – the entire family will be embarrassed if the person now is blind or missing an arm, so he does not have the ability to allow such an injury to be done to him.
  • Rava says that we work with the assumption that no one will be willing to suffer such an injury to his body, even though he might be willing to allow such damage to be done to his property.
  • Rabbi Yohanan says that we cannot always be certain of the intent of a person who says the word “yes” or “no” in circumstances like these.

According to Rashi, Rabbi Yohanan’s statement should be understood to mean that we must take into account the tone of voice that is used. Perhaps when he said “sure” he meant it sarcastically. Based on this approach, there is no real difference between personal injury and property damage, since both of them will depend of the person’s intent, which is hard to gauge. Tosafot understand Rabbi Yohanan as ruling that we cannot accept a person’s willingness to be injured, and will always interpret his statement as refusing to be injured. With regard to property damage, even if he appears to change his mind we may interpret his statement to mean that he accepts all responsibility, since he did make the original request that his property be damaged.

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