Monday, March 23, 2009

Baba Kama 85b - Evaluating Nezek / Baba Kama 86b - Boshes

The gemara says that when nezek is evaluated we are already compensating for the fact that the person will not be able to us his hand for his old job, so the sheves will only consider the job that he is able to do with a missing hand and the fact that he is temporarily out of work and can't even do that. Therefore, Tosafos points out that if the injury is only temporary so that the nezek won't prevent him from returning to his old job, the sheves will be evaluated based on what he does. For example, a surgeon who will be out of work for a month will be compensated as a surgeon, not merely as a kishuin watchman. Basically, the nezek and/or sheves will always take into consideration the job that a person actively does. What happens in a situation where someone is in school studying to be a surgeon - do we evaluate his nezek as if he has 50 years of performing surgeries ahead of him or do we say that since now he is not a surgeon he is receives only minor compensation? Furthermore, if one is not even in school to study to be a surgeon but plans on pursuing a career in surgery and is then injured, can he claim that since he wants to be a surgeon he should receive compensation for the 50 years of surgery that he would have been performing? Presumably not. We always evaluate the chance that a person can become anything, and depending on the likelihood of him pursuing a career in a more profitable job, he would receive a higher level compensation.
The gemara ponders a fundamental question: Is Boshes a payment for the feeling of embarrassment, or for the degradation despite the person's feelings? If it is the feeling of embarrassment then one who is embarrassed in his sleep and then dies before awakening will not be entitled to boshes, but if it is the fact that he was degraded then his family would be entitled ot claim boshes. The gemara concludes (as tosafos points out) that it is the feeling of embarrassment and therefore a child will sometimes receive boshes, and sometimes not, depending on his cognitive abilities to feel embarrassed. Based on this, we can ask regarding a shoteh. The gemara says that a shoteh is not capable of feeling embarrassed. The gemara in Rosh Hashana discusses an עתים חלים עתים שוטה, some sort of bipolar disorder where he cycles on and off from "normal" to "abnormal". If one embarrassed a shoteh when he was a shoteh, but then the shoteh heals and is embarrassed about what happened, would the mevayesh be responsible? Do we say that since at the time that the act was done he was a shoteh, the mevayesh is exempt, or do we say that since the chiyuv of boshes is for the feeling of embarrassment the mevayesh is chayev? I would assume that the mevayesh would be chayev - any thoughts?

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