THE JERUSALEM INSTITUTE OF JEWISH LAW - Rabbi Emanuel Quint, Dean

Lesson # 310 • Indirect Damage

In this lesson and the following one, I have divided damage caused by Reuven to Shimon into two major categories: (1) direct cause and (2) indirect cause. I have divided the indirect cause category into two subcategories: (a) proximate cause (which in halacha is termed garmi) and (b) remote cause (which in halacha is termedgerama) (There are no consistent definitions of garmi and gerama among the commentators to the Talmud. What one may call garmi another calls gerama.)

A direct cause is when Reuven strikes Shimon and injures him; or when Reuven picks up Shimon's vase and throws it to the ground causing the vase to break. In these situations Reuven is always liable for the injuries and/or damages that he causes by his action. When the action is not the direct cause of the damage and/or injury it is regarded as some type of indirect cause. The discussion here defines the proximate cause as the indirect cause closest to the direct cause; and the remote cause as the furthest from the direct cause of damage.

We open this lesson with a few of the many definitions of proximate and remote causes of damage. The great medieval commentators and decisors give many definitions, at times conflicting each other. What to one commentator is a proximate cause may be a remote cause to another commentator.

There are many definitions of the terms "proximate" and "remote" cause of damage. None of these definitions deal with situations in which Reuven is the direct cause of the damage.

A few of the many definitions as they appear in the Codes, commentaries, and responsa literature are as follows:

1. All that is done by Reuven so that the damage is instantaneous although perhaps not discernible is a proximate cause; all that is done by Reuven but the damage is not instantaneous is a remote cause.

2 If the damage is inevitable it is due to a proximate cause; if it is not inevitable, it is due to a remote cause.

3. If there is something physically lacking in the property as a result of Reuven's action, then the action is the proximate cause of the damage.

4. If the damage is not unusual and it is the natural result of an act, then the act is a proximate cause. If the resulting damage is not usual nor the natural result of the act, then the act it is the remote cause.

5. There are authorities that hold that there is no difference regarding liability between a proximate cause and a remote cause. Thus if one holds that one of them, either a proximate cause or a remote cause, is liable in Beth Din, then the other cause is also liable in Beth Din. If one holds that an individual is not liable in Beth Din for a proximate cause of damage, he is also not liable for a remote cause and vice versa.

Liabilities and reasons therefore

There are two distinct views regarding the source of liability for indirect damage caused by Reuven.

(1) There are authorities that hold that in all cases of indirect causes of damage - proximate, remote, indiscernible damages, and nullifying the creditor's lien - the Torah's view is that there is no liability. The Rabbis of the Talmud, however, imposed liability in the form of a penalty in cases of proximate cause, as they did in the cases of indiscernible damages and nullifying a creditor's lien, but not in cases of remote cause. Therefore in cases of proximate cause, Shimon can be compensated in Beth Din. Since according to this view the payment made by Reuven is as a penalty, if Reuven dies before it is paid, his heirs do not have to pay it.

(2) There are authorities that hold that according to Torah law there is liability in cases of Reuven being the proximate cause of damage. Reuven is liable whether he acts intentionally, inadvertently, or accidentally. Also, if he dies before compensation has been made for the damages, then Shimon can collect the damages out of the estate.

As was stated in a prior lesson, Reuven is not liable for indiscernible damages if he acts inadvertently. This is because the Rabbis of the Talmud exonerated Reuven for the reason that, if he acts inadvertently and knows that he will be free of liability, he would be more likely where he rendered Shimon’s food ritually unclean to notify Shimon that his foods are now unclean. The current position of the halacha is that if Reuven's act is proximate cause of the damages or the damages are indiscernible then Reuven is liable in Beth Din for the damages as if he were the direct cause. If Reuven is the remote cause of the damages he cannot be found liable in Beth Din but he is liable to the judgment of Heaven.

When as a result of Reuven’s tort actions he is liable to Shimon, and assume that he has no cash to pay; he pays out of real estate. Halacha divides real estate into three categories regarding payments of debts. Assuming that Reuven has all three types of real estate, and Shimon so requests, he may collect from the best of Reuven’s real estate, the IDIT (as is the term in the Talmud) for compensation for a tort.

(IYH, in the next lesson thee shall be definitions of proximate and remote cause with examples of each.

The subject matter of this lesson is more fully discussed in volume X chapter 386 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.