Introduction - we come now to a
consideration of the mitzvot that deal first with requirements we might today
find in tort actions - disputes involving allegations of the negligent
infliction of damage on another - as well as in commercial disputes. Also, we
will discuss issues related to the demands of justice related to leadership in
the community, here, more specifically, with respect to matters involving the
king. Finally, we will consider key principles of justice as they relate to the
conduct of war.
1 . Read Exodus 21:28, 35 and Exodus 22:5
Exodus:21: 28 When an ox gores a man or a woman to death, the ox shall be stoned, and its flesh shall not be eaten; but the owner of the ox shall not be liable.
Exodus 21:35 35 When someone’s ox hurts someone else’s ox and it dies, then they should sell the live ox and divide its price. They should also divide the dead animal between them. 36 But if the ox was known for goring in the past and its owner hadn’t watched out for it, the owner must make good the loss, an ox for an ox, but may keep the dead animal.
Exodus 22:5 5 When someone lets an animal loose to eat in another person’s field and causes the field or vineyard to be stripped of its crop, the owner must pay them back with the best from his own field or vineyard.
Q1. What are the basic principles that guide us in determining generally whether and how much a person is liable to another when that person appears to have caused damage to the other? Can you think of ways in which negligence can set a chain of events in motion that can cause great damage to people in non-material ways or even to communities as a whole?
(It appears to be nicely in sync with the American tort law principle of reasonable foreseeability, that is, if one can reasonably foresee a risk of damage to another that arises from one’s actions, one must avoid it or be responsible for the consequences of another’s injury that results from it.
First, the owner of an animal has responsibilities as to the behavior of the animal, specifically if the animal causes injury to another animal or person. As we have learned in other contexts, the degree of liability may depend upon the extent of the damage that was foreseeable as well as the measure of the damage per se.
These rules seem eminently fair and just. One must take responsibility for directly or indirectly causing damage to another. Liability depends, in part, upon the degree of foreseeability of damage one might cause another, which corresponds to the caution one should reasonably take to avoid another’s injury. The other party also bears responsibility, largely to avoid damage to himself/herself when, where, and however it may be reasonable to do so.)
2. Read Exodus 21:33-34
Exodus 21:33 33 When someone leaves a pit open or digs a pit and doesn’t cover it and an ox or a donkey falls into the pit, 34 the owner of the pit must make good on the loss. He should pay money to the ox’s owner, but he may keep the dead animal.
This has a similar fact pattern, but it involves a pit.
Here’s a paraphrase of our US Supreme Court Justice Benjamin Cardozo in the famous Palsgraf case: negligence is conduct that falls below a standard established by law to protect others against unreasonable risks. It involves a foreseeable risk, a threatened danger of injury, and conduct unreasonable in proportion to the danger. If a person could reasonably foresee injury from his action or his conduct is unreasonable in light of what he could anticipate, he would be liable for such injury.
When I studied this case in law school, I didn’t know of the ancient mitzvot that teach the same principle. I wonder if Judge Cardozo, who made it famous and who was Jewish, knew!
3 . Read Exodus 22:6 and Deuteronomy 22:8
Exodus 22:6 6 When fire breaks out and catches in thorns so that the stacked grain or the standing grain or the field is consumed, the one who started the fire shall make full restitution.
Deuteronomy 22:8 8 Whenever you build a new house, you must build a railing for the roof so that you don’t end up with innocent blood on your hands because someone fell off of it.
Q3. Does anything appear different about the facts that make you think the standard for responsibility may be different here, and why?
A. There is an inclination to find strict liability, that is, automatic liability, when negligence is so extreme that it leads to an abnormally dangerous condition with an appreciable chance of causing injury and harm to another. In early English law, strict liability was imposed in the case of the escape of fire. Our law, as is the case with these Biblical mitzvot, tends to require a finding of negligence. You can probably see the arguments for both sides.
In terms of the parapet on one’s own roof, why might we be inclined to side with the principle of strict liability if a guest falls and is hurt?
(It’s in one’s own home where, if one invites others to visit, one has a special duty of care. Further, a homeowner tends to know the dangers in one’s own home clearly and the visitor typically doesn’t. Plus, as the example suggests, failing to have a guard rail of sorts on the roof is a superb example of the sort of inherently dangerous condition that, should injury occur, give rise to automatic liability.)
B. We’ve been talking about these matters of tort law on the surface. Do you have any ideas about how we might use these principles to understand our duties to others more broadly and in other circumstances?
(We must show care in how we live with others - what we say, what we do, and how we affect others. Our actions have consequences, and if there is reason to foresee harm, we must show care and do our best to avoid or limit risk.
The Talmud, for example, uses the case of the spreading fire to teach about the spreading nature of unethical behavior, even war or hostility, and the damage a “fire out of control” can cause, the havoc it can wreak. And once it spreads, it is terribly hard to stop. So, great care must be shown in understanding the duty not to start or spread such a fire in the first place.)
Conflicts in Commercial Interactions
We come now to several mitzvot that teach us basic principles of justice in the marketplace, that is, how we are to conduct ourselves and resolve disputes when we have conflict in commercial interactions.
We considered Leviticus 25:24 when we talked about how and by what standards we should treat others we encounter in the marketplace. Beyond basic notions of fairness, we learn that, from that verse, regulations followed that, among other things, lead to various means and forms for acquiring property.
4. Read Leviticus 25:14
Leviticus 25:14 14 When you sell something to or buy something from your fellow citizen, you must not cheat each other.
Today, our first mitzvah in this group creates the basis for the determination and resolution of rights between the vendor and vendee, especially as to ways in which one party may aggrieve another and what the appropriate consequences should be for it. Essentially, it establishes that right and fair dealings are important not only to the parties involved directly but also to the community as a whole.
As one can tell from the precise words in the verse, there is a special concern here about fraud as well as exorbitant profit. We see these concerns addressed in multiple ways in subsequent interpretations and requirements, and these fundamental notions of fairness and justice play themselves out to this day in our own laws and policies.
Let’s look more closely at the specific guidance we get in terms of the duties of those who care for another’s property.
5. Read Exodus 22:7, 10, and 14
Exodus 22 7 When someone delivers to a neighbor money or goods for safekeeping, and they are stolen from the neighbor’s house, then the thief, if caught, shall pay double.
Exodus 22 10 When someone delivers to another a donkey, ox, sheep, or any other animal for safekeeping, and it dies or is injured or is carried off, without anyone seeing it, 11 an oath before the Lord shall decide between the two of them that the one has not laid hands on the property of the other; the owner shall accept the oath, and no restitution shall be made.
Exodus 22 14 When someone borrows an animal from another and it is injured or dies, the owner not being present, full restitution shall be made.
Q5. Can you detect some of the principles underlying the different fact patterns here as to responsibility for loss when people take on certain duties to care for the property of others? Let me throw some legal designations your way and see if you can tell me how the responsibility varies depending on the status of the keeper of property: unpaid bailee, paid bailee, and borrower. Why do these facts matter so much to the resolution of disputes in a just manner? What are we learning about justice here?
(Generally speaking, there’s a higher degree of care expected of a bailee if he/she is paid to safeguard property than if not. That stands to reason. Assuming no special or different understanding, part of the consideration for payment is the return duty of, so to speak, professional safeguarding.
So, the unpaid bailee is only liable if there is clear neglect. The paid bailee operates under the higher standard of a paid caretaker, liable except for loss due to unavoidable circumstances. The borrower is in yet a different position. He/she has taken the property typically for an even richer fee, and assumes virtually full liability for any loss to the property (except if it dies or is broken in the normal course of operation). In other words, he/she takes, pays, and agrees to return what’s taken in the shape in which it’s taken.)
B. Does this make sense? If so, why? Further, let’s broaden out from the commercial arena and discuss whether, and if so, how, these principles might guide us more generally in our lives, in our encounters with others.
(Discussion of differing responsibilities based upon the varying obligations we take on in our different roles.)
4. Read Leviticus 19:11,13.
Leviticus 19:11 11 You must not steal nor deceive nor lie to each other. 13 You must not oppress your neighbors or rob them. Do not withhold a hired laborer’s pay overnight.
Q4. We’ve also considered companion lessons earlier. But let’s re-visit here, as we see these mitzvot in a somewhat different setting. Why the extreme concern with false dealing? Do you have examples of false dealing in the marketplace in our own time, and ideas about why and how those who engage in it ought to compensate those they wrong?
A. What are the instructions here? How do you think the sages generally interpret these mitzvot?
(While the language here is nominally about theft or taking things that are not ours, there’s a type of inappropriate holding of property that is a significant concern of these mitzvot. We expect our debts to be paid, and so must we pay ours. While we desire property for ourselves, we are not due that which is not ours. If we have an honest argument about the status of property, we may make our case with another and/or in court. But we’re duty-bound to God and those with whom we do business to be honest about our debts and to pay them fully and on a timely basis.)
B. Again I want us to explore the purpose of these mitzvot more expansively. What does this guidance teach us about other, broader duties we bear to ourselves, our God, and others with whom we live?
(Discussion: e.g., 1) a concern about avoiding other, maybe even subtle, forms of dishonesty, 2) a concern with any sort of violation by inappropriate taking from another, 3) the importance of honest dealing and thoroughgoing integrity. These mitzvot appear in the Holiness Code of Vayikra, so it involves more than rules for court disposition of debts; they are integral to our understanding of what it means to be holy.)