DAF YOMI SUMMARY | Bava Kama 91
דף צ"א
Trying an animal for a capital and monetary crime
According to שמעון התימני the verse mentions באבן או באגרוף to indicate just as the court can examine a fist to determine the extent of its damage it must be able to assess any instrument of damage as well. Therefore if there is a monetary claim and capital crime against a שור המועד judging the monetary claim must be first. If it was tried first for its capital crime a court cannot delay execution. It therefore cannot be tried after for damages. There is no instrument (the animal) for the court to examine.
According to רבי עקיבא, who holds it does the instrument does not require court assessment, the law to judge first damages is where the owner ran away leaving no assets. If he was tried first for damages the victim can rent it out the animal to plow to reclaim his loss before its execution. This would not work for a תם because plowing is considered a payment מן העלייה.
This leads us to a fundamental question: must there be an assessment for damages meaning how exacting does the assessment have to be. The verse requiring assessment is concerning a murder weapon,
במדבר פרק לה פסוק יז
וְאִם בְּאֶבֶן יָד אֲשֶׁר יָמוּת בָּהּ הִכָּהוּ וַיָּמֹת רֹצֵחַ הוּא מוֹת יוּמַת הָרֹצֵחַ
Is the requirement the same by damages or can the court approximate the damage? A ברייתא teaches that the payment of damages, pain and humiliation are determinable immediately. However medical expenses and unemployment depend on how fast he heals. The court evaluates the time necessary and the victim is paid accordingly regardless whether he heals faster or slower. This assessment is made in case of damages not to inconvenience the victim to collect these costs daily. As far as the assessment of the weapon bothשמעון התימני and רבי עקיבא hold it is required. They differ only if has to be done by the judges.
Compensation for spitting on the victim
This is only where the spittle hits his body. If he spits on his clothing, it is like embarrassing him verbally. The רא"ש holds the perpetrator is excommunicated until he appeases his victim.
Compensation for honor
According to the תנא קמא we assess the poor differently than the rich whereas according to רבי עקיבא the assessment is the same.
Delaying paying compensation
One cannot delay paying damage that caused the victim a loss; humiliation can be delayed. It is unclear concerning other fines.
Injuring oneself
There are conflicting ברייתות concerning רבי עקיבא's opinion. From a verse in the Torah we know suicide is prohibited
בראשית פרק ט פסוק ה
וְאַךְ אֶת דִּמְכֶם לְנַפְשֹׁתֵיכֶם אֶדְרֹשׁ
Actually the גמרא is concerned more with damaging clothing than the body. One is not permitted to rend one's garment in mourning more than necessary because it is destructive. רב חסדא used to lift his garments when walking through thorn bushes because scratches heal!
A נזיר requires atonement
According to רבי אלעזר הקפר he atones for depriving himself from wine. Certainly he would require atonement for personal injury. Therefore רבי עקיבא in our Mishnah follows רבי אלעזר הקפר.
Stealing a mitzvah from the owner
If one kills a שור הנסקל or chopped a tree that was worshipped that belongs to another Jew is liable for stealing the owner's mitzvah. The owner can prosecute him and collect damages.
Chopping down trees
One is allowed to chop a fruit tree for its wood if it worth more for its wood. If trees are needed to build scaffolding the army should begin with non-fruit bearing trees unless the wood of fruit trees is worth more than its fruit. One can also cut a fruit tree if it is detrimental to other trees.
