Q&A: Damages Payments
Damages Payments
Question
Hello and blessings,
A certain explanation occurred to me regarding the Talmud in Bava Kamma, but I do not know whether it fits the plain meaning of the verses, and I would be happy to receive an opinion if it is not too much trouble. In Bava Kamma 7a, the Talmud raises a difficulty because of a contradiction concerning “best-quality” land versus “he shall restore.” Ulla son of Rav Ilai distinguishes between paying willingly and paying against one’s will, and says that only in religious court is a person obligated to pay from the best-quality property. It occurred to me to explain his view through analysis of Maimonides’ Sefer HaMitzvot. In positive commandments 236–238, Maimonides defines the commandment as being upon the religious court to judge the laws of the ox, the fire, the pit, and so on, but he does not write that there is a commandment upon the damager to pay for his damage. Sefer HaChinukh even adds that the commandment is imposed only on those fit to judge. According to this, one can offer a new explanation of the Talmud: there is no intrinsic obligation on the damager to pay for his damage; rather, the religious court has the power to take payment from him. Something like this is found in the Taz on Yoreh De’ah, siman 161, regarding fixed interest, where he writes that there is no obligation upon the person to pay, but rather the religious court has the power to take from him. Therefore, when he pays willingly, this is not by virtue of his personal obligation, but simply because he is preventing the religious court from being able to come and take from him, since there is no longer any claim against him that he owes money to so-and-so. On that basis, it is understandable that he can pay from whatever he wants, even inferior quality, since he is not actually obligated to pay at all and the Torah was not speaking about him. The Torah only said that the religious court has the power to come and take from him, and there it said that the law is best-quality. However, this approach can be rejected, because the Torah explicitly writes, “the owner of the pit shall pay; he shall restore money to its owner,” which implies that he has a personal obligation (especially since here too Ulla son of Rav Ilai explains the verse as speaking about someone who pays willingly). Perhaps one could answer that the meaning is that when he decides to pay, even though he has no personal obligation, the Torah said that he may pay from anything, and in fact defined in these words that he has no personal obligation. According to this explanation, the language of the Talmud here is very precise: “willingly” and “against his will,” rather than “in religious court” and “outside religious court,” because “against his will” means by force of obligation. More generally, even in the case of a person who has a personal obligation and pays it without coercion by the religious court, in a certain sense this is not really “willingly,” because the reason he agreed is that he is obligated, and there is an aspect of compulsion and of the King’s commandment in it. “Willingly,” by contrast, means without obligation. In our case, when he pays outside religious court, it is willingly and without obligation; when he pays against his will, it is by force of obligation, and that exists only in religious court. This requires further thought. Abaye rejects the words of Ulla son of Rav Ilai and says that it is true that the commandment begins not from the person’s personal obligation but from the ability of the religious court to compel; however, from that there is created a personal obligation upon the damager, and therefore if the religious court can compel payment from best-quality property, then the damager too acquires a personal obligation to pay from best-quality property.
In order to understand the logic behind this assumption, one must sharpen several points:
A] The Ran, in his Derashot (sermon 11), explains that the role of the religious court is not limited to arranging social life, but is meant to build an additional layer—to instill God’s laws in the land. Therefore, Hebrew law by itself cannot ensure the welfare of the political order, and for that purpose there is the king, who has the power to enact ordinances and laws as needed. Rabbi Yaakov Ariel expands on this in his book Jewish Law in Our Time; see there.
B] There is a famous conceptual inquiry: what is the purpose of damages payments? Are they monetary compensation for the injured party, or rather the repairing and rectifying of the damage that was caused? This was already discussed by the author of Machaneh Ephraim (Damages to Property, siman 1) and in the novellae of Rabbenu Chaim HaLevi (Claimant and Defendant 2:5).
One can say that according to human law, we do not have the power to impose on the damager an obligation to repair and rectify the damage, since in many cases this is impossible. Therefore the damager is obligated to pay the injured party monetary compensation and nothing more, and as is well known, this is indeed the practice throughout the world.
By contrast, divine law comes to demand something deeper from the damager and indeed expects him to repair the damage that was caused. It does not suffice with compensation given to the injured party, but seeks repair of the damage and restoration of reality to its ideal state.
True, it is not always possible to implement this demand of the Torah in practice, and the injured party must make do with mere monetary compensation[1], but what lies at the foundation of damages payments is the uncompromising demand to repair reality.
As can be proven from a number of passages, the position of Rashi and Maimonides is that the purpose of damages payments is indeed repair of the damage.[2] One can say that only obligations arising from human law begin with the private person, whereas obligations arising from divine law begin and continue from the religious court, whose purpose is to build this layer within the nation.
According to these ideas, it is possible to understand why according to Maimonides and Rashi a person is exempt by Torah law from paying for damage that is not visible, which in their view means damage that is not visible in the object itself. In order for us to apply in practice the demand for damages payments, it is not enough that monetary loss be caused to the injured party; there must be injury to the object itself. This is because damages payments are not compensation for monetary loss, but a demand to repair the damage, and if the damage is not visible in the thing itself, it cannot be repaired.
On that basis it is also understandable why the damager is not obligated in indirect causation. As Rabbi Asher Weiss has established in several places[3], the religious court in Israel requires an act and does not suffice with the result alone. Since the obligation derives from the religious court, there is no obligation on the person to pay when he caused damage indirectly. Let me explain:
When the person is exempt from payment when he caused damage indirectly, we do not say that in principle he has an obligation to pay, but that we have no ability to implement it because of the problematic nature of viewing the person as having performed the act of damage that resulted, and therefore he is exempt due to the circumstances. This assumption would be correct if the obligation began with the private person. But in our case, where the obligation begins from the religious court, no obligation at all is created for the person to pay for his damages, because there was no act here—and an act is necessary for the religious court to obligate the person.
Indeed, we do not suffice with this layer, because as we already noted, it does not answer all social needs, and one cannot allow people to damage through indirect causation or to cause damage that is not visible. Therefore the Sages enacted additional ordinances in order to complete the picture and address the need that arose. They penalized one who causes damage that is not visible, as explained in the Talmud in Gittin 53b.
Likewise, if we follow the commentators who say that according to Rashi and Maimonides the law of direct-but-not-immediate causation is a penalty or a rabbinic law[4], this too should be seen as completing the layer built by the divine command that is revealed to us through the religious courts.
Therefore it is understandable why the descendants of Noah are liable even for damages caused indirectly (as brought in Achiezer, vol. 3, siman 37), because in their case the payment obligation is monetary compensation to the injured party, and the obligation does not begin from the courts; therefore they are also liable for damage that is not visible.
In summary: my question is whether one can say that there is no personal obligation according to Ulla son of Rav Ilai, or whether from the verse “the owner of the pit shall pay” it is unavoidable that there is a personal obligation.
Answer
Hello,
It’s the eve of a festival, and this is fairly long. I read it quickly and I’ll make a few comments based on what occurred to me while reading.
A nice and original idea. If I understood correctly, you are arguing that there is no obligation on the person at all to pay; rather, if he pays, there is nothing left for the religious court to collect from him. Based on this, one would need to discuss the law of damages where there are no ordained judges (as you mentioned from Sefer HaChinukh that the commandment is imposed only on those fit to judge). Think about an uncommon case (but not a penalty) that is not judged nowadays—does that mean there is no obligation on him at all to pay, despite the fact that he caused damage? That is hard to accept.
I think one could perhaps define something in between: he has an obligation to pay, but he can pay in the ordinary way (not from best-quality property) in order to restore the situation to what it was before, and that can be done with anything of monetary value. If he did not do so, the religious court obligates him to pay, and then it is from best-quality property (because that is payment, not restoration of the situation to its previous state). This would also explain Tosafot, who wrote that obligations of damages are an innovation of the Torah, and that without the Torah we would not have imposed them. Perhaps they mean that the obligation imposed by the religious court is the Torah’s innovation, not the compensation by the damager himself. And similarly regarding punishment derived through logical inference in Tosafot at the beginning of Bava Kamma, where it sounds as though damage payments are a punishment. Perhaps they mean only the obligation imposed through the religious court.
As is well known, the question whether obligations of damages are restoration of the situation to its previous state or not is subject to a dispute between Maimonides and the Raavad regarding one who damages land: is he obligated to take the oath of one who partially admits a claim? If the obligation is restoring the situation to its previous state, then he must pay with land, and then there is no oath. But if the obligation is compensatory payment, then it is an ordinary monetary obligation and there is an oath obligation on him. Much has been written about this; I now see that you too mentioned several sources on this.
However, regarding Maimonides’ formulation, your inference is not necessary. Simply speaking, when there is an obligation on the religious court, the intent is an obligation on the public. And the damager is an individual included within the public. There is an obligation on the public to ensure that the damager pays. Of course, first and foremost he himself is obligated in this, but if he does not do so, the public compels him. An example: if a minor eats non-kosher carcasses, the religious court is commanded to separate him from them, and it is clear that “religious court” there does not mean an actual court but the public; there are other examples too.
One could also say, according to Maimonides, that the obligation on the person is not an innovation of the Torah but arises from the laws of justice. What the Torah innovated is the obligation on the religious court to see to it. As I wrote above regarding Tosafot.
By the way, your idea could be analyzed much further. For example, the She’iltot writes that the prohibition against causing damage is learned from the obligation of payment. The same is found in the Levush. But if the obligation is not on the person but on the religious court, that seems problematic.
And perhaps this can be made dependent on the later authorities’ inquiry whether the monetary obligation of the damager is because of negligence, or by virtue of the mere fact that his property caused damage. If the obligation is due to negligence, it is possible that this is a duty on the religious court to collect from him. But if the obligation is due to the mere fact that it is his property, it seems this is an obligation on him himself.
There is also room to discuss the exemption due to “liable to a greater punishment” regarding a pursuer who broke vessels while running. It seems from here that this is a punishment and not a compensatory obligation. According to our approach, one could say that this was stated only regarding his obligation through the religious court—that he is exempt because of the rule of being liable to a greater punishment—but he himself would still be obligated to pay even in such a case.
Regarding your comments about one who causes damage indirectly, I will only note that, as is well known, he is still liable by the laws of Heaven. And the Meiri wrote in the chapter HaKones, in the name of Baal HaHashlama, that this liability is a full obligation, and one who does not pay is a robber and disqualified from testimony. It is only that the religious court does not compel payment.
Discussion on Answer
A. Nothing of the sort. Maimonides writes there explicitly the opposite. He writes that the gentiles do not insist on enforcing the laws of damage caused by property even though they are obligated in them.
Women are an inseparable part of the public according to all views. I don’t know which Sefer HaChinukh you mean. These things are clear and, as I understand it, not subject to any dispute.
B. Not true. The fact that it is a monetary category does not mean there is no punishment here. Maimonides only writes that it is money, to exclude a penalty. Who claimed that damage payments are a penalty? The Levush and the She’iltot write that from the fact that one is obligated to pay, it follows that there is a prohibition. That is indeed an innovation, but there is no way to understand that according to them the payment is a penalty.
A. This is how Tzafnat Paneach and Even HaEzel explained Maimonides there.
Sefer HaChinukh, commandment 51, writes that women are not obligated.
B. It is true that being a monetary category does not mean it is not a punishment, and one can impose a monetary obligation as a punishment. But from Maimonides’ words, where he compares it to a loan, it seems that the reason a payment obligation is imposed on him is not punishment, but rather this is a way in which an ordinary monetary obligation is created on a person, like a loan.
A. Then ask them.
There is not even a hint of this in Sefer HaChinukh there. And even if there were—that would prove nothing. Women are not qualified to judge, so the commandment to judge does not apply to them. But the religious court acts in the name of the public as a whole, also as their representatives. Just as priests offer sacrifices on behalf of the public (certainly according to the side that they are our agents, but not only according to that side), and yet we ourselves are forbidden to perform the Temple service.
Hello and blessings! Thank you very much for the quick response.
A. Regarding your point that my inference from Maimonides is not necessary, since perhaps Maimonides was speaking about an additional layer: from the laws of justice there is a personal obligation, but the Torah innovated that there is also responsibility on the religious court—in my opinion this is not possible.
In Maimonides, chapter 8, halakhah 5, it seems that among the descendants of Noah there are no laws of damage caused by one’s property. Therefore the very fact that among Israel there are such laws is itself an innovation that the Torah needs to state explicitly. But according to Maimonides in Sefer HaMitzvot, it introduces only a commandment on the religious court and not at all on the individual person.
Likewise, the possibility that this is a commandment on the public and therefore includes the damager himself is difficult, because in this regard women are not part of the public, as explained in Sefer HaChinukh, and yet they still pay if they caused damage.
B. Regarding what you wrote from the She’iltot and the Levush: according to their view, damages payments are a punishment, and therefore one can infer from here a prohibition. But from Maimonides, chapter 2, halakhah 7, where he compares the laws of damages to a loan, it seems that this is a monetary category and not a punishment, and it is obvious that he did not understand it that way.