Lesson # 304 (part one) •TORTS It is stated in Baba Kama 30a, “He who wishes to be pious must fulfill the laws of [the tractates] Nezikin [Damages]. The seriousness with which the halacha views injury to a fellow human being can be observed from the law that states that the Day of Atonement forgives sins committed by man against G-d, but not sins that man commits against his fellow man. The only penance is when the wrongdoer asks the victim for forgiveness and makes adequate compensation. In these lessons I have designated “injury” to mean something done to harm a person; “damage” to mean something done to harm property. I have designated Reuven as the person who causes the injuries and/or damages by himself and/or through his property to Shimon, the person who is injured and/or his property damaged, whether caused intentionally, inadvertently, or accidentally. Maimonides lists five Torah commandments as the source of the laws of torts. There are thus five types of torts described in these commandments. (1) Commandment #236: Reuven causes the damage or injury; (2) Commandment #237; Reuven’s ox causes damage or injury by goring: (3) Commandment #238: Reuven causes injury by digging a pit into which Shimon and/or his property falls; (4) Commandment #240: Reuven’s ox causes damage “with its tooth” or “with its foot”; (5) Commandment #241: Reuven causes damage by kindling a fire. In types (2) and (4), it is Reuven’s ox that causes the injury and/or damage. The domain in which the damages are causes is often crucial to ascertain if Reuven is liable to Shimon for the injuries and/or damage. The Talmud was redacted when people were primarily engaged in agriculture. Therefore one’s animal became the basis for many of the laws of torts caused by one’s property. Reuven’s actions are classified into three categories: (1) the direct cause of the injuries or damages; (2) the indirect cause of the injuries or damages; and (3) the remote cause of the injuries or damages. The domain in which the tort was committed may determine liability. The halacha speaks of riding a horse in public streets. This formulation was used in most Western countries until just a few years ago and is still used in many places in third world countries. With certain exceptions, halacha presumes that a person is always responsible and liable for his tortuous actions, whether awake or asleep, when they are committed. There may be an exception to the statement that the tortfeasor, Reuven is always responsible for his actions and liable for all injuries and damages caused by him, including accidents. There are two major views as to this exception, one more liberal in construing liability against Reuven and the second holding him strictly liable in most circumstances with only a limited scope of exception. These views follow with a few examples. At times the distinction between the views is blurred and some of the codifiers present overlapping views. Some commentators hold that all intents and purposes the views are essentially the same. View (I). The first view of exception to liability for causing injury or damages asserts that if the tort was committed entirely accidentally, without any negligence on Reuven’s part in causing the occurrence, then he is not liable. Beth Din will assess each case to determine if there was such an accident. The assessment is carried out as follows: Was Reuven’s conduct similar to that of a person from whom an object was stolen? If Reuven’s conduct did not lead to the theft then he will not be liable if the accident was entirely out of his control. This view does admit that if Reuven’s manner when the accidental occurrence took place was similar to the conduct of a person who loses another’s object, then he is liable since he was somewhat negligent. According to this view Reuven is free of liability only if he did not intend the act that caused the injury or damage. If the act was done intentionally then he is liable even if the damage occurred by accident. Of the classical examples, several deal with Reuven tripping while carrying a jug. Depending on the facts, tripping can be sometimes termed an accident and sometimes almost an accident. Example (1) Reuven lay down to sleep next to Shimon’s vase that was on the floor and, while sleeping, stretched out his hand and broke the vase; Reuven is liable. If he lay down to sleep next to Shimon who was sleeping and in his sleep Reuven struck Shimon and injured him; Reuven is liable. However, if Reuven fell asleep first and then Shimon lay down next to Reuven, placed his jug there and Reuven while asleep, injured Shimon and broke Shimon’s jug, Reuven is not liable. This is because Shimon’s conduct can be considered negligent while Reuven’s unintended action while sleeping does not subject Reuven to liability. Example (2) If Shimon sets his jug down in a public street and Reuven, while walking trips over the jug and breaks it. Reuven is not liable for breaking the jug. Example (3) Reuven trips while carrying a jug and when he is falling with the jug, it falls on Shimon and injures him. Reuven is not liable. Although tripping is somewhat negligent, Shimon might have been more careful to avoid the result. Example (4) Reuven trips while carrying a jug and when he is falling with the jug it falls on Shimon’s object and damages the object. Reuven is liable. The reason for this is that tripping is a somewhat negligent act. The consequential liability from this differs from the preceding example because in the preceding case Shimon might have been more careful to avoid the result. Example (5) Reuven falls from a
high place such as a roof and lands on Shimon and injures him. Reuven is
liable. This holds true only if Reuven falls while an ordinary wind is
blowing. However, if Reuven was blown off the roof by an extraordinary
strong wind then Reuven is not liable. The subject matter of this lesson is more fully discussed in volume X chapter 378 of A Restatement of Rabbinic Civil Law by E. Quint. Copies of all volumes can be purchased via email: orders@gefenpublishing.com and via website: www.israelbooks.com and at local Judaica bookstores. Questions to quint@inter.net.il [The Parshat
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