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Gerama and Garme

GERAMA AND GARME (Aram. גְּרָמָא, גְּרָמֵי), terms variously used in the Talmud to describe tortious damage caused indirectly by the tortfeasor's person. The following acts are examples cited of garme damage: a judge delivering an erroneous decision resulting in damage to another; burning another's bond – thus preventing him from recovering his debt; a banker giving an erroneous valuation of coins – causing them to be acquired at a loss; damaging mortgaged property held by a creditor – thus reducing the value of his security; informing on another's property to bandits – thus causing them to take it away. Opinion is divided in the Talmud over the question of liability for this kind of tort (BK 98b; 100a; 117b); some of the sages maintain that liability does exist, while others exclude it. In other cases – similar to those cited above – the damage is termed gerama (BK 48b; 60a; BB 22b), but here liability is excluded. Examples of gerama damage are placing a ladder by a pigeon loft, enabling a weasel to climb up and eat the pigeons; setting a fire by means of the wind resulting in a conflagration; allowing an animal to trespass onto another's land, where it falls into a well so that its corpse pollutes the water. Other cases which were later interpreted as gerama are bending the stalks of grain in another's field toward an approaching fire so that they catch fire; placing poison in the path of another's animal, causing it to eat this and die; sending a burning object through a minor or an idiot, who is irresponsible and thus causes damage; inciting another's dog to bite a third person; frightening another to the extent that he suffers injury or damage from such fright; leaving a broken vessel on public ground so that the pieces cause injury (BK 24b; 55b–56a). Even the earliest of the post-talmudic commentators found difficulty in explaining the difference between gerama damage, for which the Talmud does not impose any liability, and garme damage, for which talmudic opinion differs as to whether there is liability or not. According to Rashi (to BB 22b, S.V. gerama; see Sh. Ar., ḤM 386:4), there is no difference between the two concepts – and that those sages who exclude liability for garme damage also exclude it in cases of gerama damage, and vice versa. Some of the tosafists maintain (BB 22b, S.V. zot omeret) that, indeed, in strict law there is no distinction and that there is no liability in either case – save that the more common injuries are called garme and that those sages who impose liability for garme damage do so in the sense of fining the tortfeasor for the sake of public order. However, according to the majority of the tosafists, all indirect damage that is an immediate result of the tortfeasor is termed garme, whereas all other acts of indirect damage are called gerama – in respect of which the sages are unanimous in excluding liability. There are also further distinctions between gerama and garme damage, which all present difficulties and which are all less acceptable. It appears that the two categories can be distinguished by using gerama to refer to indirect damage that is too remote to have been foreseeable, and garme to refer to indirect damage that should have been foreseeable – but which was caused solely by the independent act of a second person who acted negligently following the first person's act, while he could have refrained from doing that which resulted in the damage. In the latter situation, some sages maintain that the first person is exempt from liability, even though he could have foreseen that his act would result in the negligent act of the second person – who is held to be solely responsible. On the other hand, others hold the first person liable, just because he should have foreseen that his own act would result in the negligent act of the second person. According to this distinction, therefore, the loss sustained by someone acting on the advice of an expert is garme damage – because he should have realized that other experts should be consulted before he acted on one expert's advice and he was himself negligent in failing to take such second opinions. If, however, the matter is such that only one suitable expert is available and there is no choice but to rely exclusively on his advice, it is not a case of garme damage, and it is the unanimous opinion that the expert is liable for the consequences of his negligent advice. The halakhah is that a person is liable for garme damage, although it is disputed in the codes whether such liability stems from the strict law or is in the nature of a fine for the sake of public order, as mentioned above. The law applicable in the State of Israel is the Civil Wrongs Ordinance, 1947, which makes a person liable for the natural consequences of his conduct – but not if the decisive cause of the damage is the fault of another. An expert is held liable for giving negligent declarations and opinions.

BIBLIOGRAPHY:

Gulak, Yesodei, 1 (1922), 157; 2 (1922), 24, 182, 206–9; 4 (1922), 162f.; Herzog, Institutions, 2 (1939), 311 (index), S.V.; ET, 6 (1954), 461–97; 7 (1956), 382–96; S. Albeck, Pesher Dinei ha-Nezikin ba-Talmud (1965), 43–61; B. Cohen, Jewish and Roman Law, 2 (1966), 578–609, addenda 788–92. ADD. BIBLIOGRAPHY: M. Elon, Ha-Mishpat ha-Ivri (1988), 1:195, 330; ibid., Jewish Law (1994), 1:219f, 396; M. Elon and B. Lifshitz, Mafte'ah ha-She'elot ve-ha-Teshuvot shel Hakhmei Sefarad u-Zefon Afrikah (legal digest), 2 (1986), 295–96; B. Lifshitz and E. Shochetman, Mafte'ah ha-She'elot ve-ha-Teshuvot shel Hakhmei Ashkenaz, Zarefat ve-Italyah (legal digest) (1997), 205; A. Lichtenstein, Dina de-Garme (2000); M. Drori, "Causality in Jewish Tort Law: Implementation of Principles in Israeli Public Law," in: Tehumin, 26 (2005).