Assault And Battery:

By: Marcus Jastrow , Lewis N. Dembitz

An English law term for injury to the person—a crime recognized from the earliest stages of human law. Disputes about property, about contracts, or about the rights of man in the family or in society, arose later in the course of social evolution; but from the earliest times personal injuries gave rise to disputes which had to be settled by some tribunal or arbiter.

In ancient law, redress for injuries to the bodytakes the form of compensation to the person wronged, not of punishment in the name of the state; and this principle is found throughout the Talmudic jurisprudence. Many nations of antiquity and the Germanic tribes as late as the earlier Middle Ages allowed even the guilt of the slayer to be atoned by the payment of "wergild"—that is, man-money—to the heirs of the slain; but here the Mosaic law calls a halt with its stern command, "Ye shall take no ransom for the life of a manslayer" (Num. xxxv. 31, R. V.).

The Law of Retaliation.

The passages of Scripture from which the law of Assault and Battery is derived are Ex. xxi. 18, 19 and 22-25; Lev. xxiv. 19, 20; Deut. xix. 21 (indirectly), and xxv. 11, 12. According to the literal interpretation, these passages teach the law of retaliation: eye for eye, tooth for tooth, as the redress for mutilation or, technically speaking, mayhem; bruise for bruise, stripe for stripe, etc., as the redress for the infliction of pain; and cutting off the offender's hand as the punishment for disgracing another by violent means. It seems that the Sadducees, when in power, conformably to their love for the letter of the law in all matters, followed these passages literally. At least the Megillat Ta'anit (ch. iv.) ascribes this practise to the "Boethus men," with whom the Sadducees are often identified; and the varied efforts of many sages to give good Scriptural grounds for their own theory (B. Ḳ. 83 b ) indicate that there were some who dissented from the Pharisaic interpretation. The liability for bodily violence is stated in the Mishnah (B. Ḳ. viii. 1) as follows:

Five Grounds of Liability.

He that injures his neighbor is liable to him on five grounds: (1) damage; (2) pain; (3) stoppage of work; (4) cost of cure; and (5) shame. In dealing with this proposition the Gemara (B. Ḳ. 83 b et seq. ) first discusses why the literal rule of eye for eye must yield to the more humane law of compensation in money. Referring to the passage in Lev. xxiv. 17 et seq. , where the smiting of a man is treated along with the smiting of an animal, it is argued that, as payment is made for the latter, so payment should be made for the former, except in the special case in which the man is killed, inasmuch as the Lawgiver says (Num. xxxv. 31), "Ye shall take no ransom for the life of a manslayer"; which shows that for the murderer there is no ransom or satisfaction, but that there is a ransom for him that takes anything less than life, as, for instance, the principal limbs, which, when removed, never grow again. Again, if a blind man put out the eyes of a man possessing sight, what can be done to the offender in the way of retaliation? Nevertheless the Law says, "Ye shall have one manner of law" (Lev. xxiv. 22); hence redress must be adjudged in money against all alike. Further, stress is laid on the term "taḦat" (for, in place of) which is applied to animals, as, "he shall surely pay ox for ox" (Ex. xxi. 36), and again in the phrase "eye for [in place of] eye" ( ib. 24); still greater stress is laid on the verb "natan" (to give), which is used in Ex. xxi. 22, where nothing but a money reward can be meant, and is again used in the rule in Lev. xxiv. 20, which literally translated reads, "as he giveth a blemish upon man, so shall it be given upon him." The interpretation of "eye for eye" being thus established to the satisfaction of the rabbis, there is no reason for them to doubt that "bruise for bruise" means money for the pain suffered, and does not mean the infliction of like pain. However, the position is strengthened by the passage in Deut. xxii. 28, 29, where he who forcibly seizes a damsel not betrothed and lies with her, is mulcted in the sum of fifty shekels, because (taḦat asher) "he hath humbled her."

The separate elements of liability are:

Damage Proper (Nezeḳ): Damage, How Appraised.

The Mishnah says the damage is appraised by ascertaining how much the person injured would have been worth as a slave in the market before the infliction of the injury and how much he is worth after it; the difference represents the damage. But if the result of the injury has been to render its victim deaf, he is considered worth nothing whatever, and the damage is accordingly equal to the whole of his former value.

Pain, "as when he has singed him with a spit or spike, even on his finger-nail, where no mark is left." Here the question arises, should the judges ask themselves ( a ) how much money would "such a man"—that is, one as strong or as delicate as the injured man—be willing to take to submit to the pain, or rather ( b ) how much would he be willing to pay to forego the pain? The former measure, though named in the Mishnah, is in the Gemara deemed inadmissible; for many people would not take all the money in the world and willingly submit to the pain: the latter measure is held to be more reasonable. Where the pain is incident to a mutilation, the judges should say: "Suppose the wounded man to have been sentenced to have his hand cut off, how much would he be willing to pay to have it taken off under the influence of a drug [an anesthetic], rather than have it rudely hacked off; and this amount would serve to represent the damage" (B. Ḳ. 85 a ).

Stoppage of Work:

The Mishnah allows to the injured man his wages only as a "watcher of cucumbers"—that is, such wages as he can earn in his disabled condition—"because he has already been paid the value of his eye or the value of his hand"; for the action might be brought at once when the injury was done, and the judges would estimate the loss of time beforehand. This estimate should be paid in full, though the injured man should recover sooner than was expected (B. Ḳ. 85 b ).

An example is put, where violence may bring about stoppage of work alone, without mutilation or pain or need for cure: it is in the case of unlawful imprisonment ( ib. ).

Cost of Cure:

As the Scripture says, he "shall cause him to be thoroughly healed" (Ex. xxi. 19), the inference is that the guilty party shall pay for the services of a physician. He may not offer his own services, no matter what his skill may be; nor can he avoid the outlay of money by finding a physician that will do the healing work free of charge. Should ulcers arise in consequence of a wound, thecost of healing such ulcers also falls on the assailant; but if ulcers arise from other causes—for instance, because the wounded man disregards the orders of his physician—the cost of healing these is not to be assessed. The wound may disappear and break out again and again: the cost of cure will still rest on the assailant; but if it be once fully healed (literally, "to its full need"), the liability comes to an end (B. Ḳ. viii. 1). The occasion for cost of cure may exist without any of the other elements of damage; for instance, where one has forcibly thrown chemicals upon another, giving to his skin the whiteness of leprosy, it is his duty to pay the cost of having the skin restored to a healthy color (B. Ḳ. 85 b ).

Shame or Humiliation: Scale of Compensation.

Here it is impossible to lay down hard and fast rules; for, as the Mishnah says, "it all depends on who is put to shame and who it is that puts him to shame." But for certain acts of violence that involve very little pain and no permanent disablement, but mainly disgrace, the sages fixed a scale of compensation, namely: for a stroke with the fist, one sela or shekel (nominally 60 cents); for a slap with the open hand, two hundred zuzin (1 zuz = 15 cents); for a back-handed slap, or for pulling a man's ear or hair, or tearing off his cloak or a woman's headgear, or spitting at a person if the spittle reaches his flesh, four hundred zuzin ($60 nominal) (B. Ḳ. viii. 6). A kick with the knee costs three selas; with the foot five selas; a stroke with an ass' saddle thirteen (B. Ḳ. 27 b , Rashi l.c. ). According to Maimonides (Yad ha-Ḥazaḳah, Ḥobel u-Mazziḳ, iii. 8-10), each slap, kick, or stroke counts separately. But he also says (following B. Ḳ. 36 b ) that these sums are not meant for the full-weight or Tyrian coins, but for the "country currency," worth only one-eighth of the Tyrian.

These liquidated damages cover only pain and shame: if sickness ensue, stoppage and cure have to be paid for separately.

Israelites to Be Treated as Freemen and Freewomen.

Although R. Meïr's opinion (B. Ḳ. 86 a ), that all Israelites are to be treated as freemen and as freewomen, as "the descendants of Abraham, Isaac, and Jacob," and are therefore entitled to the same compensation for disgrace, has not been accepted generally, yet where the sum has been fixed by the sages, as shown above, no reduction is made on account of the poverty or low degree or even of the lack of self-respect of the party insulted.

There is a sixth element (which arises, however, but rarely); namely, the "price of children" (Ex. xxi. 22): "If men strive together and hurt a woman with child, so that her fruit depart, and yet no mischief follow, . . . he shall pay as the judges determine." Something is to be paid over and above damage, pain, etc., which is hard to determine; for a woman delivered of her child is, generally speaking, not made the worse thereby; though in the special case she may be much debilitated. Her loss of health and strength would fall under the head of damage proper ("nezeḳ").

Another view is, however, expressed in the Mishnah to the effect that the "deme weladot," the price of the child or children that were destroyed by the miscarriage, should be paid to the husband of the woman by the man causing the damage. The standard authorities are almost silent on the subject (B. Ḳ. v. 4; Gemara, 49 a ).

Human Beings Are "Forewarned."

A human being is always "forewarned"; that is, he is, like a "forewarned ox," liable for full damage, whether awake or asleep, whether willing or unwilling. But if a man in his sleep or unwillingly (as by falling from a roof) hurt another person, he is not liable for the "disgrace" that might result, say, if such person's clothes should be torn from him; and if A hurt B by pure accident—for instance, if he be thrown upon him from a roof by a sudden gust of wind—he is liable only for damage, but not for pain, healing, or stoppage (B. Ḳ. viii. 1; Gemara 86 b ).

Deaf-mutes, insane persons, and infants are "pegi'atan ra'ah" (bad to meet); he who hurts them is liable for full compensation; but if they commit an assault, they are not liable at all ( ib. viii. 4). However, no compensation for shame is made to the insane ( ib. 86 b ). When an injury is done to an infant girl, the compensation for "damage" and loss of time is payable to her father ( ib. 87 a et seq. ).

Persons "Bad to Meet."

A married woman or a slave is also "bad to meet," as full compensation must be paid for any injury done to either of them. According to the better opinion, the assailant of a slave must pay even for the disgrace put upon him. The compensation for injury to a married woman, for pain and shame, is paid to her; for loss of work and healing, to her husband; for damage proper, according to one opinion, to her, according to another, to her husband. For an injury to a slave the whole compensation goes to the master. When an injury is done to an infant boy still at the father's board, the compensation should be invested in land, of which the father will receive the rents and profits till the boy attains full age (thirteen). When a father injures his infant daughter, he pays pain, cure, and shame to her at once, but neither damage nor loss of time. A married woman is excused from payment only because she has no property under her own control; a slave, because he can not own property: hence, when the woman, by the death of her husband or by divorce, comes to her own, or when the slave is manumitted, she or he may be sued for the injury done while under disability ( ib. viii. 4).

When a man does an injury to his own wife, he is bound to pay her for her damage, pain, and shame at once, in such a manner as to give her the free disposition of the money. He needs not pay for loss of work; and for her healing he is bound as her husband. The wife, if she injure her husband, is liable for full compensation (Maimonides, "Yad," Ḥobel u-Mazziḳ, iv. 16-18). For the manner of its collection see Ketubah.

A master is not responsible for assaults committed by his bondman or bondwoman, nor for injuries done by them to the property of another. A master injuring a Hebrew servant is liable for all the elementsof damage except that of stoppage of work, that being a loss to him only (B. Ḳ. viii. 3).

Self-Defense a Justification.

Self-defense is a full justification for an assault that is not continued after the necessity has ceased. But if two men strike each other at the same time, each is liable to the other, and the excess in damages must be paid (ShulḦan 'Aruk, Ḥoshen Mishpaṭ, 421, 13).

Where one enters upon the grounds of another without his permission, the owner of the ground may order him off, and may even remove him by force; but if he strike him or harm him otherwise than in forcing him away, he is liable like any other assailant (B. Ḳ. 48 a ).

Should the injured party die before he recovers judgment for the assault, the right of action is cast upon his heirs; and in like manner if the assailant die before satisfaction is made or before it is adjudged, the action for the wrong done may be brought against the heirs, and it may be satisfied out of the estate descended to such heirs.

To this rule there is one very rare exception; namely, where one puts a disgrace upon a sleeping person (say, by exposing his nakedness), and the sleeper dies without finding it out, the action for the disgrace does not pass to his heirs (B. Ḳ. 86 b ).

The maxim of the common law, that a felony merges the civil remedy, was also known to the Rabbis. When a man strikes his father or mother so as to leave a mark ("Ḧabburah"), or when he wounds any one on the Sabbath, he can not be sued for compensation; for he is deserving of death. While it was very unlikely that the offender would be put to death—for long before the days of the Mishnah capital punishment under the Mosaic law had ceased —still this excuse of the lesser offense by the greater was held good. But where the act is punishable by stripes only, such as wounding a person on the Day of Atonement, the civil remedy is available (B. Ḳ. viii. 3, 5).

The payments for damage and for pain are in the nature of penalties, and can be adjudged only upon proof by witnesses. But in the absence of witnesses the assailant can, upon his own confession, be ordered to pay for loss of work and cost of cure—which elements are in the nature of a debt—and for the disgrace suffered, on the ground that by his own confession he publishes the humiliation of his victim (Maimonides, "Yad," Ḥobel u-Mazziḳ, v. 6, 7).

Procedure in Assault Cases.

Only a court of "ordained" judges could try an action for injury to the person, according to the rules laid down above, and give judgment for a definite sum; and as judges could not be lawfully ordained, except in the Holy Land, judgments for damage and pain could not be collected, even in Babylonia (B. Ḳ. 84 a ). But, as a matter of necessity, a system was worked out which soon spread over all countries in which the Jews enjoyed any sort of autonomy. When parties complained of injuries, the judges, after hearing their allegations and the testimony of witnesses, indicated the sum that in their opinion the assailant should pay, and, upon his refusal, would threaten him with excommunication ("nidduy"); and this course would generally have the desired effect. But loss of time and cost of cure, being elements sounding in money, and not in the nature of penalties, can only be determined by judges having ordination (Maimonides, "Yad," Sanh. v. 10, 17).

Although the remedy for assaults was altogether pecuniary, yet to strike a fellow-Israelite was always deemed a sinful and forbidden action. As the Law strictly forbids the giving to a convicted criminal a single blow beyond the lawful number (Deut. xxv. 3), the sages concluded that a blow given to any one, except by authority of law, was forbidden by Scripture; and they held that, though the assailant had paid all damages, he should ask forgiveness from the injured party, and that it was the duty of the injured, when earnestly entreated, not vindictively to withhold his forgiveness (B. Ḳ. viii. 7).

When damages which usually follow a striking arise without actual contact with the body of the injured person—for instance, if one frighten his neighbor, or yell into his ears in such a way as to deafen him or otherwise make him ill—the wrong-doer is "free from human judgment," but liable to the punishment of heaven (B. Ḳ. 91 a ).

These Laws Not for Gentiles.

The passages in Scripture on which the law of Assault and Battery is grounded speak of a man and his brother, or a man and his neighbor; hence they can not be and were not applied to affairs in which either party was a Gentile. Whatever redress was given in such cases by Jewish courts was only a matter of equity, or, as the Rabbis say, by reference to Prov. iii. 17, "for the sake of the ways of peace."

J. Sr. L. N. D.