Q&A: Indirect Causation in Damages
Indirect Causation in Damages
Question
Hello and blessings,
It is commonly accepted to define the laws of damages as a prohibition focused on the object/result. In my humble opinion, according to a significant portion of the medieval authorities (Rishonim), the prohibitions of damages are obligations on the person, stemming from the human act and not from the result. This can be proven from the famous words of the Nimukei Yosef in the passage about “his fire is considered like his arrows,” where later authorities explained that in his view a person becomes liable because the act is considered complete at the very first moment. In my humble opinion, the Nimukei Yosef’s entire novelty is possible only if we say that the prohibition stems from the person’s action; then the reasoning mentioned above carries weight, since liability depends on the completion of the act. But if we say that the prohibition is due to the result, it stands to reason that the prohibition takes effect only when the result actually occurs. This can be illustrated from a robber, where the liability stems from the fact that another person’s money is in his possession and not from the act itself; and so too here, if we say that the prohibition stems from the result, the liability stems from the fact that damage occurred, except that the act attributes it to him. Likewise, it does not seem reasonable to say that we somehow view the result as if it had already occurred and therefore impose liability because of the result; see Minchat Shlomo on Bava Kamma, siman 10, where he elaborates in rejecting this reasoning. Therefore, it would seem that all of the Nimukei Yosef’s words mean that, regarding liability, the act is considered complete, and this follows from the fact that he holds that liability is based on the person’s act. He speaks about monetary liability and not about the prohibition, but as is known, tort payments can be viewed either as law or as punishment. If it is law, then obviously they stem from the damage that occurred and not from the human act; but if it is punishment, there is room to say that the liability is generated by the person’s act. If the Nimukei Yosef defines the cause as the person’s act, then it is proven that he holds tort payments to be punishment and not law, and the factor that generates monetary liability is the same factor that generates the prohibition, namely the act. Likewise, from the very fact that he compares Sabbath to the prohibitions of damages, it implies that just as on the Sabbath the prohibition is due to the act, so too he held regarding damages. If so, why is indirect causation in damages forbidden?
Answer
I disagree. First, it is not at all clear what the prohibition is in damages. The Torah states only an obligation to pay. And simply understood, that is grounded in the damage itself. Rather, if there was no negligence, he is exempt.
Of course, this can be made dependent on the conceptual inquiry into what generates liability in damaging property: negligence, or ownership itself. According to the second side, this is not defined as liability for the act.
Nor can this be proven from the Nimukei Yosef. It is entirely possible that the liability is for the result, except that the basis on account of which you become liable is your act. Furthermore, specifically regarding “his fire is considered like his arrows,” the discussion there is about when he is considered a person who caused damage (because according to Rabbi Yohanan, fire is not really a case of damaging property but falls under the laws of a person who causes damage). So here there is more room to define it as liability for an action and not for a result. However, even regarding a person who causes damage, where a person is always deemed forewarned, and ostensibly that means the liability is not for his act but responsibility for the result—still, his definition as a person who causes damage depends on his act, but once he is defined that way he is liable for the result.
I did not understand your question as to why indirect causation in damages is forbidden. What does that have to do with the introduction? Even if the prohibition is on the person’s action, an act of indirect causation is also an action, just not enough to impose liability in a human court. Moreover, according to the Hashlama cited in the Meiri at the beginning of HaKones, there is no prohibition regarding indirect causation, only an obligation to pay under the laws of Heaven.
Discussion on Answer
I am not dealing at all with damaging property, but with a person who causes damage, so I did not understand the connection to the conceptual inquiry into what generates liability in damaging property. “His fire is considered like his arrows” is a case of a person who causes damage.
A. I did not understand the claim. One is liable for the result, so as long as the result has not yet happened, he is not liable. But what generates the liability is the action—because of it you are liable for the result.
As for a robber, simply speaking this is not a matter of “another person’s money is in your possession,” because if so, why did they expound “like one who snatched the spear”? What is the difference between a thief and a robber? On the contrary, a claim of “another person’s money is in your possession” is an ordinary monetary claim (a hired worker’s wages, a loan, damages), not robbery.
B. My point still stands. True, perhaps the Hashlama holds that beyond the prohibition there is also an obligation to pay, but I wrote my answer so as to explain it even without that.
C. A well-known distinction, but incorrect (certainly not necessary).
First of all, if that is what you are discussing, it is worth saying so. Regarding “his fire is considered like his arrows,” as is known, the medieval authorities disagreed in understanding Rabbi Yohanan as to whether it is his property or actually a full case of a person who causes damage.
Thank you very much, now I understand your words better. I agree with you that even if the liability is for the result, the action is still what causes you to be liable for the result. But the action only serves as a tool to attribute the damage to you, and has no significance in itself; therefore we go by the time when the result occurred and not by the time when the action occurred. So as long as the result happened after his death, it makes no difference that the action took place during his lifetime. And if the Nimukei Yosef says that we go by the time when the action occurred, that implies it is the focal point and not merely a tool to attribute the result to you.
Since it seems to me that I have already gone on quite a bit about this topic, I won’t keep pestering you…
Thank you very much
A. I did not understand at all your rejection of my proof from the Nimukei Yosef. In your opinion, can one say that if a robber created a device through which he could rob by pressing a button, but died before it happened, he would be liable? After all, the basis of liability is that another person’s money is in your possession, and as long as the result has not occurred, he is obviously not liable—and the same should apply to damages. If the liability is because of the result, then even though a human act is also needed, it makes sense that the liability does not take effect until the result occurs, since the act functions as a kind of “condition” for liability. This can be proven from the words of the Brisker Rav (in the book that collects various topics from his teachings), who proves that an exemption due to duress does not apply to a robber, since duress means the act is not attributed to you; but for a robber, where liability is not due to the act but to the result, that is irrelevant. In other words, in liabilities that stem from the result, the act is not so significant; and if the Nimukei Yosef argues that the act is what generates liability, then clearly the liability is because of the act and not the result.
B. The Talmud in Bava Batra 22 explicitly says: indirect causation in damages is forbidden.
C. My question was based on the assumption that many later authorities said that in prohibitions that are obligations on the person, indirect causation is permitted. There are many sources for this, and I will mention only, for example, the words of Rabbi Yaakov Ariel in the responsa Be’ohalah Shel Torah, part 2, siman 29. And he is not the only one—this is a very well-known distinction.