Back on Bava Kama 90a, a mishnah laid out monetary penalties for particular insults. The anonymous mishnah says a person who strikes another gives the aggrieved party a sela, but Rabbi Yehuda quotes Rabbi Yosei HaGelili as being more specific: 100 dinars for a slap, 200 dinars for a slap on the cheek and 400 dinars for a more degrading slap with the back of the hand.
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But do all injured parties receive the same recompense? What if the victim has a higher social status?
It is all assessed in accordance with the honor of the one who was humiliated. A dilemma was raised before the sages: Does the first tanna in the mishnah say his opinion as a leniency, or does he say his opinion as a stringency?
The Gemara explains the two possibilities: He says his opinion as a leniency, teaching that there is a poor person, who doesn’t need to take so much payment for humiliation, as detailed in the fixed sums of the mishnah. Or perhaps he says his opinion as a stringency, teaching that there is a rich person whom the assailant needs to give him more than those fixed sums.
The Talmud clarifies that the amount of damages varies depending on the honor of the person who was struck. So then what’s the point of a fixed amount? It could be that this is a minimum amount, with additional costs and stringencies imposed for slapping higher-ranking people. In the alternative, perhaps it is a maximum payment and we’re more lenient to the slapper if their victim had a lower status, and reduce the amount accordingly.
Which approach wins the day?
Come and hear a proof from that which Rabbi Akiva says in the mishnah: “Even with regard to the poor of the Jewish people, they are viewed as though they were freemen who lost their property and were impoverished, and their humiliation is calculated according to this status, as they are the sons of Abraham, Isaac and Jacob, and are all of prominent lineage.”
Conclude from Rabbi Akiva’s statement that the first tanna says his opinion as a leniency.
Rabbi Akiva says that even poor Jews, as the children of Abraham, Isaac and Jacob, have a pedigree that entitles them to honor. Consequently, it would be inappropriate and a violation of a person’s inherent value to reduce what’s due to them below a certain minimum, which would seem to make the first tanna’s statement a stringency.
But the Gemara ultimately claims it is a leniency — a ceiling on damages rather than a floor. How can this be? The later commentators cast the anonymous tanna and Rabbi Akiva as opponents in examining the mishnah. If Rabbi Akiva sees the rule as a stringency, then the anonymous mishnah, which the Gemara and later codes affirm carries the day, must be a leniency.
There’s something beautiful about Rabbi Akiva’s words that elevate poorer Jews and give them greater honor and a higher stake in recovering from an insult. (Particularly poignant, perhaps, if we remember that Rabbi Akiva himself was once desperately poor.) Unfortunately, in my view, that’s not the direction the rabbis choose, and the halakhah treats the amounts in the mishnah as a maximum, not a minimum.
Read all of Bava Kamma 91 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on February 1st, 2024. If you are interested in receiving the newsletter, sign up here.
