Laws of Damages

Any person whose acts or possessions damage someone else’s property must make good the loss of the damaged party.

Laws protecting property are a necessary feature of any legal system; even so, we can extract profound lessons from the particular characteristics of Jewish tort law and from the way our Sages related to this aspect of law.

While we might think that avoiding damage to our fellow man is the most basic and primitive level of protection required for civilization to exist, our Sages seem to grant it a most exalted status: “Rav Yehuda says, someone who wants to be a saintly person should fulfill matters of torts” (Bava Kamma 30a).

At the simplest level, Rav Yehuda is pointing out that there are myriad tiny ways in which we may hurt or offend other people that are not included in the strict rules of torts, and a saintly person is scrupulous to avoid all of these. But there is also an educational message of virtue in the laws of torts themselves.

PASSIVE AND ACTIVE CAUTION

The tractate Bava Kamma, which deals with the laws of torts, begins with an enumeration of the four archetypal kinds of damages. Three of these involve damage caused by one’s property, such as an animal, and one is damage caused directly by human action.

It seems that there is a basic difference, even a dichotomy, between these kinds of damage. Preventing damage by one’s property involves an active effort to supervise it, whereas avoiding damage oneself is a simple matter of refraining from harmful activity.

Yet it seems that the dichotomy is not so great. For one thing, the very fact that these types of damage are enumerated together hints at some kind of likeness. Furthermore, the gemara indicates that the caution required of a person is also a kind of positive watching: “A person is required to supervise his body” (Bava Kamma 4a). It is almost as if our bodies are our property, which require watching just as our animals do. (See Rav Fischer’s “Beit Yishai” on this topic.) Indeed, an alternative, though less accepted, reading of this Mishna states explicitly that the common denominator of these kinds of causes of damage is that they are all “property” (Shita Mekubetzet).

This approach to the laws of damages gives us a profound insight into human nature. Our bodies are not passive slaves to our higher natures, obediently performing whatever we ask of them. On the contrary, there is a constant conflict between our material nature and our higher human nature.

Our base animal nature, like our actual beasts, belongs to us and hopefully is domesticated and tamed by us, but is by no means under our complete control. Although we are justified in taking advantage of its muscle and training it to help us in every way, we need to fence it in, to keep it away from temptations which could lead it to lose control, damaging ourselves and others.

Understanding how to channel and exploit our material nature without losing control of it is indeed the key to saintly behavior.