Q&A: Payment for the Damage
Payment for the Damage
Question
I read somewhere in your writings on the Talmud that liability to pay money also has an aspect of punishment and an aspect of compensation.
That is, there are two reasons to pay money after causing damage: one is to compensate for the damage, and one is to achieve atonement.
Did I understand correctly? It’s a bit hard for me to grasp, because I’m used to dichotomies: with a monetary obligation, either it’s a punishment or it’s compensation. And here it is both, right?
Answer
I’ve written more than once about the problematic nature of those analytical dichotomies, and of dichotomies in general. Specifically, I don’t remember what you quoted here. But we do see that there is an element of compensation here, and we also see an element of punishment (which is why the rule of “he receives the greater penalty” applies). What exactly the relationship is between these two components—that’s a different question.
Discussion on Answer
I’m not claiming that it isn’t a debt, but rather that it also has a punitive dimension. In Bava Kamma there it is easier to see this in the law of the thief: “Pluck a fig from my figs” (money that comes back). And in fact, to apply the rule of “he receives the greater penalty” to benefit received is rather puzzling, because benefit-payments contain no punitive element whatsoever—unlike damages or theft (which, according to some medieval authorities, is a special novelty of the Torah, like a loan written in the Torah).
A. According to the view among the later authorities that the reason one is obligated to pay is because he was negligent in guarding, then the payment is a punitive fine for not having guarded properly, and not compensation—correct?
B. According to the view that the reason for the obligation is because it is his property, I’ve seen people ask: “So what if it’s his property? It wasn’t him, it was only a kind of indirect causation, etc., so why should I care that it’s his property?” And because of that question they say that since it is his property, it is a scriptural decree that a person is liable for damage caused by his property.
Is it really necessary to arrive at a scriptural decree? Is that question actually justified? What does it mean, “So what if it’s his property”? Well, then he’s responsible for it—that’s obvious! It’s self-evident. It’s like asking, “Why is it forbidden to kill? Because life has value. And why does life have value?” And the answer is: that’s just how it is; it is simply self-evident. So here too, no?
A. Absolutely not. That is a tort-based ground of liability. See the opening lecture to Bava Kamma, which I think was uploaded here as an article. Damages are not a fine according to any view.
B. Exactly. A person is responsible for his property just as he is responsible for his body (his body isn’t “him” either).
The Rabbi writes that the fact that the rule of “he receives the greater penalty” applies proves that it is considered a punishment and not merely a debt. Apparently the explanation there is that with a legal debt, such an exemption does not apply. And Rabbi Baruch Ber also wrote this regarding the obligating factor of “benefit received,” that it is not considered an ordinary debt but rather a loan written in the Torah, since the rule of “he receives the greater penalty” applies there.
But apparently it is stated explicitly in some of the medieval authorities that the rule of “he receives the greater penalty” applies even to a debt. See the medieval authorities on Bava Kamma 70b regarding the debt of a prostitute’s hire, where that rule applies. And it is also explicit in the Rashba’s responsa that the obligating factor of “benefit received” is considered like any regular loan, and therefore collection is made from intermediate-quality land.
How can this be explained?