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of his fellowman, he violates the mitzvah of returning a lost object, case, because while his money belongs to him, his soul is not #
because this money belongs to someone, and by testifying the witness his. For this reason, it is forbidden for a person to wound his
could restore it to him. So, too, in our case, a physician who does not friend, even if his friend gives him permission to do so, because
testify on behalf of the claimant nullifies the above mitzvos. a person has no rights over his body at all. The Shulchan Aruch
However, the Rama teaches (Choshen Mishpat #17:12): If a litigant Harav (Hilchos Nizkei Haguf #4) rules the same.
sued someone for a small amount and the judge sees that according
to halachah that person owes him more than he is claiming, the judge Regarding both of the above reasons, one has to judge if there is a vi-
does not have to mention this. Perhaps this applies in our case as well. olation of the Torah prohibition of wounding in doing the additional
Since the affected party asked for compensation for a 35% disability, amputation: a) Since he does not cut twice and does not cause the
the physician would not be obligated to reveal that he is entitled to patient additional pain and suffering, but only adds one centimeter to
much more. the required amount of amputation, perhaps he has not violated the
The words of Rama require clarification, however. Why should prohibition of wounding? b) Since the part that is left cannot be used
the judge not tell the claimant that he is entitled to more? Does not for anything anyway, perhaps there is no prohibition of wounding
for a useless limb? With this in mind, we would also need to judge
the mitzvah of returning a lost object require every person to do all whether a physician who cut more than was neccessary without per-
that is required so the money of another not be lost? Several explana- mission from the patient is obligated to pay compensation.
tions have been offered for this question. We will cite that of Nesivos
Hamishpat (Mishpat Ha’urim, 1) and Aruch Hashulchan (19). We can claim that there is no prohibition of wounding for a 20818_efi-ab - 20818_efi-ab | 10 - A | 18-08-20 | 13:29:02 | SR:-- | Magenta #20818_efi-ab - 20818_efi-ab | 10 - A | 18-08-20 | 13:29:02 | SR:-- | Yellow 20818_efi-ab - 20818_efi-ab | 10 - A | 18-08-20 | 13:
The explanation of Nesivos Hamishpat is based on the Gemara in non-functional limb, based on what is explained in maseches Kiddu-
Bava Basra (5a), which is the basis for the ruling of the Rama. The shin (24b): If a slave’s eye was not fully functional and the master
Gemara relates that Runya had a field that was enclosed on all four blinded him, or if his tooth was loose and the master knocked it
sides by the fields of Ravina. After Ravina built a stone wall around out… if he was able to use them, a [gentile] slave goes free, but, if
his own fields, he demanded payment from Runya for enclosing his not, the slave does not go free, meaning if the master blinded an eye
field as well. Runya refused. Pay me the cost of a cheap fence of cane, or knocked out a tooth that were not functional, the slave does not
said Ravina. Runya refused. Pay me the cost of a watchman because go out free. In maseches Gittin (21b, s.v. lo efshar) Rashi explains that if
I spared you from paying a watchman, said Ravina. Again, Runya one wounds a slave, the slave goes free because the master has violated
refused. the prohibition of wounding. From the fact that the slave does not
One day, Ravina discovered that Runya was interested in safe- go free if the wounded limb was useless, we can learn that cutting off
guarding his palm-trees, and that he had certainly benefitted from the part of a non-functional limb does not constitute the prohibition of
fence, so he took Runya to Rava’s beis din to demand payment. Rava wounding.
said to Runya: If you do not accept his last offer, I will obligate you to Perhaps one can disount this proof by claiming that a non-func-
pay for the stone fence. According to Rav Yossi, if the one surrounded tioning eye or a loose tooth are not considered important organs.
by the fence expresses his satisfaction with the fence, he has to pay for Therefore damaging them is halachically considered like causing a
it all (i.e. to participate in the expense of fencing all sides of the field). slave a hidden blemish or like cutting off an extra finger, neither of
Interestingly enough, had Runya compromised with Ravina and which would set the slave free. (Since they are not a disgrace to the
participated in the cost of a watchman or a cheap fence made of slave, the Torah does not fine the master for them.) If so, then if a

306 1 Medical-HalacHic Responsa of Rav ZilbeRstein Amputating a limb 2 291