In Jewish law, damages (Hebrew: ) covers a range of jurisprudential topics that roughly correspond in secular law to torts. Jewish law on damages is grounded partly on the Written Torah, the Hebrew Bible, and partly on the Oral Torah, centered primarily in the Mishnaic Order of Nezikin. Since at least of the time of the Mishnah, Rabbinic culture developed and interpreted the laws of damages through communal courts, judges, and enforcement. While Jewish communities exercised relatively little authority over criminal law in the diaspora, quasi-autonomous communal oversight of damages (tort law) continued to be extensive until the modern era. Jews continue to this day to voluntarily submit themselves to adjudication of damages disputes by rabbinic judges and courts (beit din). This practice is more prevalent today in communities that profess Orthodox Judaism. In addition, aspects of rabbinic law have been absorbed into tort law in Israel.
Damages include any wrongful act, neglect, or default whereby legal harm is caused to the person, property, or reputation of another. They usually give rise to some form of compensatory liability, though some exceptional damages may be prohibited (or merely deprecated) without accompanying liability. Under rabbinic law, there are important distinctions between damages caused by persons or by property, and between direct and indirect action. When people cause damage directly, they are covered by the rabbinic equivalent of either assault and battery, against another person, or trespass against another's property. When one's property causes damage, Jewish law may distinguish torts due to such factors as accidents, negligence, fault or willful fraud.
As a religious law, Jewish law or halakhah characterize a variety of actions as damages, though these may not correspond to secular legal conceptions. Notably, Jewish law tends to go beyond secular law in prohibiting or regulating acts of hurtful speech, humiliation, betrayal, and self-injury.
History and literature In rabbinic literature, damages law is articulated primarily in tractate Bava Kamma of the aptly named Order Nezikin. In Bava Kamma, the Mishnah and Talmud set forth the framework for damages law and formulate numerous rules and key principles. In addition, law pertaining to damages appears in Bava Metzia, Sanhedrin and other Talmudic tractates. After undergoing further expression during the Geonic period, damages law was incorporated in the Jewish law codes of the medieval and early modern periods. In the Shulchan Aruch (16th century), the topic is codified primarily within Hoshen Mishpat, the section (Tur) most similar to modern civil law. The law of damages remained a popular and important topic throughout the history of rabbinic responsa literature, tapering off dramatically in the 19th century as European Jewish communities come under the jurisdiction of national legal systems.Elon
Accidents In daily life, an accident is an unforeseen harm that befalls a person or property, usually through lack of care. The person injured or the owner of the things destroyed or depreciated is entitled to compensation and if necessary to seek redress in a civil court through litigation, which, in every system of jurisprudence, is governed by special laws.
The four "father categories" of damage The Torah deals with the law of negligence in and , the leading cases being those of an ox goring a man or beast; an open, unprotected pit; fire spreading to a neighbor's property; also, to a certain extent, trespassing cattle. For the rules of , concerning the liability of a person lawfully possessed of another's goods for loss or destruction, see Bailments. In the language of the Mishnah the chief instances given in the Torah for a more broadly applicable law, such as those relating to the goring ox or those relating to any animal that inflicts unusual harm, or to the open pit or any similar inanimate thing, are called "fathers"; other instances derived from these are known as "descendants" or "derivatives".
The Mishnah and the Tosefta treat the law of compensation for results of negligence in Bava Kamma, 1-6, commented on in the Babylonian Talmud, 2-62b, and in the Jerusalem Talmud, 2-5c. Maimonides discusses the subject under the heading Damage to Property ("Nizkei Mamon") in his Mishneh Torah.
The "goring ox" with its derivatives is put aside, because full compensation for its acts can be demanded only when the master has been forewarned, and the treatise opens with the following four "fathers" for full compensation, under the technical names of "ox", "pit", "chewer", and "kindling". Here the "ox" means an animal allowed to trespass on a stranger's land and do injury with its foot; the "chewer", a like animal that does harm with its teeth. Both examples are derived from . The damage done may far surpass the gain to the owner of the animal. The "pit" refers to , the "kindling" to . Rav, a leading Babylonian authority, understood the "ox" among the "fathers" to embrace both the foot and tooth, and regards the word here rendered "chewer" as standing for man; for when a man himself commits an injury he is always mulcted in full damages.Bava Kamma 3b
Derivative categories Any tame animal permitted willfully or carelessly to go on a neighbor's land, and which does mischief by knocking things over with its body, or by dragging them along by means of its hair, tail, harness, bridle, or yoke, or by the burden which it carries, or by rubbing against a post or wall, is a derivative of the "ox", while an animal breaking down a post or wall by rubbing against it, or defiling grain or grass with its excrements, is a derivative of the "chewer". But striking with the body, or malignantly biting, or crouching on something, or kicking, is treated on the same principle as "goring". Chickens, dogs, cats, and even hogs are named among the animals for which the owner is made liable. Derivatives of the "pit" are a stone, knife, burden, or a mound; in short, anything over which one can stumble or from which one can receive injury if left in the open, that is, on the highway or on common lands. Derivatives of the "kindling" are articles which the owner has left on his roof, whence the wind carries them off to the injury of person or property. For whatever damage arises indirectly, the ultimate author is liable to the extent of only half compensation. Thus, when the foot, in striking the ground, kicks up pebbles, and these cause an injury, or when the animal upsets any implements, which in turn fall upon other implements and break them, the damage is considered remote, and only half compensation is given. These remote damages, when caused by animals, are known generally as the "case of pebbles" (tzrorot).
Assault and battery "Assault and battery" is the English law term for injury to the person (Hebrew: ). In ancient law, redress for injuries to the body takes the form of compensation to the person wronged, not of punishment in the name of the state; and this principle is found throughout the Talmudic jurisprudence. Many nations of antiquity and the Germanic tribes as late as the earlier Middle Ages allowed even the guilt of the murderer to be atoned by the payment of wergild (literally "man-payment") to the heirs of the murdered. Jewish law holds a different stance, "You shall take no ransom for the life of a manslayer" ().
The law of retaliation The passages of Scripture from which the law of assault and battery is derived are ; ; (indirectly), and . According to the literal interpretation, these passages teach the law of retaliation: eye for eye, tooth for tooth, as the redress for mutilation or, technically speaking, mayhem; bruise for bruise, lash for lash, etc., as the redress for the infliction of pain and cutting off the offender's hand as the punishment for disgracing another by violent means. The Sadducees, when in power, following from their interpretations focused on the letter of the law, followed these passages literally. The Megillat Ta'anit (ch. 4) ascribes this practice to the "Boethus men", with whom the Sadducees are often identified; and the varied efforts of many rabbis to give good scriptural grounds for their own theoryBava Kamma 83b indicate that there were some who dissented from the Pharisaic interpretation.
Five grounds of liability In cases of injury to a person, Talmudic law identifies five categories of damages:
damage proper () pain () stoppage of work () cost of cure () shame ()
In dealing with these categories, the GemaraBava Kamma 83b etc. first discusses why the literal rule of eye for eye must yield to the law of compensatory damages in money. Referring to the passage in Leviticus 24:17-22, where the killing of a man is discussed along with the killing of an animal, it is argued that, as payment is made for the latter, so payment should be made for the former, except in the special case in which the man is killed, inasmuch as the Lawgiver says (Numbers 35:31), "Ye shall take no ransom for the life of a manslayer"; which shows that for the murderer there is no ransom or satisfaction, but that there is a ransom for him that takes anything less than life, as, for instance, the principal limbs, which, when removed, never grow again. Again, if a blind man put out the eyes of a man possessing sight, what can be done to the offender in the way of retaliation? Nevertheless, the Law says, "Ye shall have one manner of law" (Leviticus 24:22); hence redress must be adjudged in money against all alike. Further, stress is laid on the term "takhat" (for, in place of) which is applied to animals, as, "he shall surely pay ox for ox" (Exodus 21:36), and again in the phrase "eye for [in place of] eye" (Exodus 21:24); still greater stress is laid on the verb , which is used in Exodus 21:22, where nothing but a money reward can be meant, and is again used in the rule in Leviticus 24:20, which literally translated reads, "as he makes a blemish upon man, so shall it be made upon him".
Since the interpretation of "eye for eye" is established as monetary compensation, there is no reason for them to doubt that "bruise for bruise" means money for the pain suffered, and does not mean the infliction of like pain. However, the position is strengthened by the passage in Deuteronomy 22:28, 29, where he who forcibly seizes a damsel not betrothed and lies with her, is fined in the sum of fifty shekels, because (takhat asher) "he hath humbled her".
Damage proper and its appraisal How much should a person be compensated for injuries? The Mishnah says the damage is appraised by calculating the different of two values: how much the person injured would have been worth as a slave in the market before the infliction of the injury and how much the injured party is worth after it. This difference represents the liability for damage proper. But if the result of the injury has been to render its victim deaf, he is considered worth nothing whatsoever, and the damage is accordingly equal to the whole of his former value.
Pain