Q&A: Causing Damage Indirectly
Causing Damage Indirectly
Question
Hello and blessings.
I wanted to ask your opinion regarding the prohibition against causing damage. It seems that what people usually say (as a conclusion, at the end of the introductory lecture to Bava Kamma) is that the prohibition against causing damage stems from a legal intuition: “Do not enter your fellow’s monetary territory,” or something along those lines. I wanted to ask whether that whole legal intuition applies only to direct damage done by one’s own hands, but not to indirect damage, where I am not “invading” my fellow’s property domain (though of course there may still be a prohibition because of “love your fellow as yourself,” etc.). According to this, it would seem that regarding the topic of saving oneself with another person’s property, where Rashi’s well-known view is that one may not violate theft, etc., and this also appears from other medieval authorities (Rishonim) as well (unless one says that the property is liened for saving one’s fellow) (as the Afeikei Yam writes, if I remember correctly, and as was written in “Be Killed Rather Than Transgress Regarding Theft” (Column 291))—perhaps with regard to “damage caused indirectly,” where this legal intuition is not relevant, Rashi would agree that one is permitted to save himself?
I would be happy to hear your opinion; thank you very much.
And by the way, there is a passage in Ketubot 86a that has been bothering me. There it seems that it is permitted to cause damage indirectly (Rav Nachman suggested to his poor niece that she waive her mother’s ketubah, thereby causing the purchasers to lose out and enabling her to collect the ketubah) for the sake of some other “value” — namely, the fact that she was poor. Although it still seems that you would have to reimburse the principal amount of the damage you caused him, regarding loss of profit you would not have to; but in any case we see that it is permitted to cause damage in order to pay afterward, indirectly, for the sake of some other value—unless one draws some distinctions. I’d be glad to know whether you ever wrote anything about this passage.
Thank you very much.
Answer
First of all, as a matter of logic, I do not understand why indirect damage should not be prohibited. On the contrary, the prohibition should be exactly the same as with a direct physical act. And indeed, the Talmud says that indirect damage is also prohibited, except that there is no obligation of payment. This is one of the proofs of the disconnect between the prohibition and the obligation to pay.
It is not Rashashak but the Rashba in a responsum.
Preventing profit is not damage.
Discussion on Answer
And regarding the Talmudic passage in Ketubot: after all, there is a prohibition against damaging someone in order to pay him afterward (as is proven by the fact that some say there was a special enactment of Joshua permitting one to cut down another person’s tree in order to save bees and then pay him afterward. You see that an enactment was needed, and in general there is a dispute whether to rule that way). So how could Rav Nachman say to damage the purchasers’ principal through indirect causation and then pay them? If we say as I suggested, that the prohibition of indirect damage is not the regular prohibition of causing damage but another prohibition, maybe that would make sense. I’d be glad to hear your view..
I don’t see any necessity for that. On the contrary, on the legal plane it is not clear that there is any prohibition. There may be only an obligation to pay, and the entire prohibition, even in the case of direct damage, may come from those sources.
Joshua’s enactment can be interpreted as an obligation to do so and not as permission, and then there is no necessity to say that this would be prohibited were it not for the enactment.
As for causing damage in order to pay, this is an old discussion. See an overview here: https://www.etzion.org.il/he/halakha/choshen-mishpat/monetary-law/%D7%90%D7%99%D7%A1%D7%95%D7%A8-%D7%9E%D7%96%D7%99%D7%A7-%D7%9E%D7%9E%D7%95%D7%9F-%D7%97%D7%91%D7%99%D7%A8%D7%95
I meant Afeikei Yam; he infers that other medieval authorities also hold like Rashi..
Clearly there is a prohibition in indirect damage — I didn’t say there isn’t. I only said that perhaps what is prohibited there is not because of the legal intuition, but because of a prohibition such as “and you shall do what is upright and good,” etc. That would perhaps also better explain why a religious court imposes liability דווקא when it is not indirect..