Laws Of Damages

 

The Torah specifies that if one person damages another's property, through his self or through his possessions, he who causes the damage must repay the damaged party for the losses incurred.  A necessary feature of any legal system is laws protecting property.  Even so, we can extract profound lessons from the particular characteristics of Jewish tort law, and from the manner in which our Sages related to this aspect of law.

 

One might think that avoiding causing damage to one's fellow man is the most basic and primitive level of conduct required for civilization to exist; yet our Sages seem to grant it a most exalted status.  "Rav Yehuda says, he who desires to be a saintly person should fulfill the matters of torts" (Bava Kama 30a.)

 

At the simplest level, Rav Yehuda is pointing out that there are a myriad of ways in which we may hurt or offend other people which are not included in the strict rules of torts, and a saintly person is one who 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 CAUTIONARY MEASURES

 

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 them, whereas avoiding causing damage is a simple matter of refraining from harmful activity.

 

Yet it seems that the dichotomy is not as great as it seems.  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 one of positive control: "A person is required to supervise his body" (BK 4a.)  It is almost as if our bodies are our property, which require suervision just as our animals do (See Beit Yishai.)  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 BK 4a.)

 

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 beasts, belongs to us and hopefully we domesticate and tame it - but it is by no means under our complete control.  We are perfectly justified in taking advantage of its muscle, and in training it to help us in every way, but at the same time we need to set limitations and keep it away from temptations which could lead it to lose control and damage ourselves and others.

 

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

 

THOUGHTFULNESS TOWARDS PEOPLE AND PROPERTY

 

The insights of the previous chapter regarding theft are relevant here as well.  When we damage our neighbors' property, we are wronging not only them but also the property itself.  God gave this property to its owner in order to fulfill some essential part of His plan; damaging it impairs its ability to fulfill its mission. 

 

Also relevant are what we write in chapter 188 regarding the special nature of guarding the property of someone else, and chapter 190 regarding the prohibition of damaging any useful object even if it belongs to us.

 

FOUR LEVELS OF THOUGHFULNESS

 

The entire section of the Mishna and Talmud dealing with monetary law is called the order of "Damages," emphasizing the centrality of this aspect of law in all of our interpersonal dealings.

 

The first tractate, Bava Kamma, begins with the four categories of damages.  This tractate deals with actual harm done by one person to another, the most damaging kind of conflict.

 

The second tractate, Bava Metzia, deals with monetary disputes between claimants; it opens with the case of two people each claiming that he found the same lost garment.  Now these two people are not trying to harm each other, but they are still at loggerheads – each one claims the whole garment for himself.

 

The third tractate, Bava Batra, deals with the laws of neighbors.  It opens with the case of neighbors who decide to build a wall between their properties.  While there is still a conflict of interest between the sides, they are now working together to further their common interests.

 

The next tractate is Sanhedrin, which deals with the procedures of the courts of law.  Now cooperation in resolving monetary conflicts is not only at the level of the individual, but at the level of the community as a whole.  This order of tractates hints at an evolution in human interaction that elevates mankind from the primitive level of self-concern to the advanced level of social harmony.

 

 

CHAPTER 184 – DAMAGE TO PEOPLE

 

The Torah tells us that if a transgressor is liable for the punishment of lashing, "Forty [lashes] shall he be smitten, and not more; lest more be added to them and there be an excessive blow, and your brother will be disgraced in your eyes" (Devarim 25:3.)  The Rambam points out that if the Torah forbids smiting even a convicted criminal more than the prescribed punishment, certainly it must be forbidden for anyone to smite his fellow man (Chovel uMazik 5:1.)

 

The Rambam draws our attention to the person whom it is forbidden to hit – a wicked person.  But just as significant is WHY the Torah forbids hitting him.  The verse does not talk about his pain and suffering, but rather about his loss of dignity.

 

This emphasis on the loss of dignity is evident in other aspects of the laws of damages as well.  For instance, there are five categories of payment that the assailant is liable for; one of them is the victim's shame.  (The others are: lost earnings due to permanent disability, those due to temporary convalescence; pain and suffering; and medical expenses Shulchan Arukh Choshen Mishpat 420:3.)

 

And even though Torah law creates liability for shame only in a physical assault, many communities imposed legal liability for purely verbal assault as well (SA CM 420:39 and 421:13 in the Rema.)