Q&A: Indirect Causation of Damage and Maimonides’ View Regarding Loss of Work Time and Medical Expenses
Indirect Causation of Damage and Maimonides’ View Regarding Loss of Work Time and Medical Expenses
Question
According to Maimonides, based on the Shakh’s explanation that in Maimonides’ view one is liable both for indirect causation and for garmi, why is a person not liable for medical expenses and loss of work time when it was done unintentionally? Seemingly he should be held liable because of the law of indirect causation.
In addition, what is the reasoning for exempting one from the four categories when it was unintentional? What stands behind this “decree of Scripture” (Bava Kamma 26b, the Talmud there and Tosafot there)?
The above Shakh:
Shakh, Choshen Mishpat 418:4
It is because one is exempt for damage by indirect causation; rather, Maimonides holds that although the baraita is indeed interpreted this way, nevertheless we do not rule in accordance with it, because it follows the view that we do not adjudicate garmi, whereas we do adjudicate garmi, as is stated explicitly in the Talmud in the first chapter of HaGozel Kamma (91b), and as explained above in sec. 386. And Maimonides holds that garmi and indirect causation are one and the same, in accordance with Rashi as cited by Nachmanides in his laws of garmi; and so I proved from Rashi’s words at the beginning of HaKones, and in HaGozel there on 98a, and in the chapter Lo Yachpor at the end of 22b, unlike Maharshal in the chapter Keitzad HaRegel sec. 36 and in the first chapter of HaGozel Kamma sec. 19 according to his view—see there.
Answer
True, a person is always considered forewarned, and in damages caused by a person (personal injury) we do not distinguish between accident and intent. But perhaps that is only for damage done directly by hand. In the law of indirect causation, however, there may be a difference. Even if indirect causation is liable, perhaps indirect causation under compulsion or by accident would not incur liability.
And this can be sharpened, because according to Maimonides all tort payments are not really monetary obligations (atonement money, something like a fine), and the commentators have already noted this. If so, in the Talmud there is even more room to say this, and then it is possible that they did not obligate him in a case of compulsion/accident, because for that he does not need atonement. In monetary liabilities, payment is a legal obligation toward the injured party / claimant, and then there is no room to distinguish between accidental and intentional, since money is owed to the defendant. But in a fine or atonement payment there is certainly room to distinguish.
And in general, regarding one who causes damage by indirect causation, it says at the beginning of HaKones (56a) that he is exempt in human courts but liable in the heavenly sense, and this is also ruled as Jewish law by Maimonides. Therefore, the Shakh’s words seem difficult to me.
Discussion on Answer
See the Laws of One Who Injures and Damages 5:6, and its source is Rabbi Joseph ibn Migash, Shevuot 46. The Raavad in his glosses and Nachmanides in Shevuot there disagree with him.
I would appreciate it if the Rabbi could direct me to the source for Maimonides’ distinction between tort payments and monetary liabilities.
Where can it be shown that there is a claim that tort law is a fine?