ASSAULT


ASSAULT, the infliction of any degree of violence on the body of another person, whether injury results or not. The biblical injunction, "he may be given up to 40 lashes but not more" (Deut. 25:3), which applies to *flogging by way of punishment, was interpreted as prohibiting, a fortiori, the nonauthorized flogging of an innocent person (Maim., Yad, Ḥovel u-Mazzik 5:1; Sh. Ar., ḤM 420:1). As it violated a negative biblical injunction for which no other penalty was prescribed, assault itself was punishable with flogging (Mak. 16a; Ket. 32b). Striking one's father or mother was an assault punishable with death (Ex. 21:15), but the capital offense was later restricted only to such blows as caused bodily injury (Sanh. 11:1). Criminal assaults, which result in any assessable injury and which also give rise to claims for damages, prompted the question of whether the civil or the criminal sanction was to prevail, it being common ground that for any one wrong not more than one sanction could be imposed (Mak. 4b; 13b). While as a general rule the lesser (civil) remedy would merge with the greater (criminal) remedy, so that the assailant would be liable to be flogged rather than held liable in damages, it was held that the sanction of payment of damages should prevail over the criminal sanction – for the practical reason (as distinguished from several hermeneutical ones) that having the assailant flogged would not relieve the victim's injury, and "the Torah has regard for the money of the injured" (Tos. to Ket. 32a). Thus, flogging came to be administered only where the assault had not caused any assessable injury (Ket. 32b; Maim., Yad, Ḥovel u-Mazzik 5:3; Sh. Ar., ḤM 420:2). This state of the law apparently failed to satisfy the rabbis, and in consequence they prescribed *fines for assaults which were insulting, but which had not caused substantial damage. The amounts of the fines were fixed, varying in accordance with the severity of the assault (e.g., kicking, slapping, punching, spitting, hair pulling, etc.) – always leaving it to the discretion of the court to increase or reduce the fine in special circumstances (BK 8:6; Maim., Yad, Ḥovel u-Mazzik 3:8–11; Sh. Ar., ḤM 420:41–43).

While criminal liability depended on the availability of sufficient evidence of warning previously administered to the assailant and of the act of the assault itself, liability for damages could be established on the strength of the assailant's own admission or other simplified modes of proof (Maim., Yad, Ḥovel u-Mazzik 5:4–8). Damages were to be estimated and assessed by the court, the biblical law of talion (Ex. 21:23–25; Lev. 24:19–20) being replaced for this purpose by an elaborate system of assessing the value of injured limbs in terms of money (BK 83b–86a).

Another distinction between criminal and civil assaults is that the criminal assault is deemed to be spiteful and malicious (Maim., Yad, Ḥovel u-Mazzik 5:1), whereas the civil assault might be unintentional: the warning, "nor must you show pity," given in connection with talion (Deut. 19:21), was interpreted so as to render even the unintentional assailant liable in damages (Maim., Yad, Ḥovel u-Mazzik 1:4), apart from the rule that the civil responsibility of a man never depends on the willfulness of his acts (BK 2:6). The amount of damages, however, would be reduced in cases of unintended assaults (see: *Damages). Mutual or anticipated assaults, as in boxing or wrestling matches, even if they result in grievous injury, do not give rise to claims for damages (Asher b. Jehiel, She'elot u-Teshuvot (1803), 1a (2nd pagination), no. 101:6; Sh. Ar., ḤM 421:5); but where two men assault each other maliciously, the one who suffered the greater injury has a claim for the damage suffered in excess of the damage inflicted by him (BK 3:8).

Assaults may be intentional, though not spiteful: for instance, if an injury results from surgical treatment, the surgeon – provided he was duly qualified – is not liable for damages (Tosef., BK 9:11). The same rule applies to a father beating his son, a teacher his pupil, and the messenger of the court assaulting a person in the course of duty (ibid.). In all those cases, liability may, however, be established by proving that the assailant exceeded the measure of violence necessary to achieve his legitimate purpose (ibid.). Still, if only by way of exhortation, assailants of this kind are warned that while they go free under the laws of men, they may yet be judged by the laws of Heaven (Tosef., BK 6:17). The assailant can only cite the consent of the victim to being assaulted if the victim has expressly waived beforehand any claim to damages, and if no grave injury was caused, for no man seriously consents to be injured (BK 8:7; BK 93a). The injunction, "nor must you show pity," was applied also where the assailant was indigent: that being no ground for reducing the damages (Maim., Yad, Ḥovel u-Mazzik 1:4). But, however generous the award might appear, where it was made according to the letter of the law, it was of no use when the victim could not collect the judgment debt, and, being practically unenforceable, did not provide any sanction against the assailant. Ways and means had to be found also to deter people who resorted to violence and against whom damages were no effective sanction: thus R. Huna is reported to have ordered the hand of one such recidivist to be cut off (Sanh. 58b) – a drastic measure which was sought to be justified by the extraordinary powers of the court to impose extralegal punishment in situations of emergency (Sanh. 46a), but also explained away as a mere curse which was not actually carried into effect (cf. Nid. 13b). The precedent of Huna was followed in Spain several centuries later, when an assailant who had attacked a rabbinical judge at night and wounded him badly, had both his hands cut off (Judah b. Asher, Zikhron Yehudah (Berlin, 1846), 6a, no. 36). Cutting off the hand that sinned is reminiscent of biblical law (Deut. 25:12), and it was used as a threat to a husband who habitually beat his wife and wounded her (Beit Yosef, Tur., EH 74, end). Huna, however, did not rely on the biblical law, but on the verse, "the high arm shall be broken" (Job 38:15), a precept which would scarcely warrant the hand being cut off. Indeed, in later sources the breaking of the hand is a punishment meted out to one who beat a rabbi with his fist (Sefer Ḥasidim, 631).

Jurisdiction in matters of personal injuries (Dinei Ḥavalot) is held not to have devolved on post-exilicy courts: these are regarded as "agents" of the ancient courts only in such common matters as contract and debt, but not in matters as rare and exceptional as personal injuries (BK 83b). This assumption of infrequency was disproved soon enough; and Jewish courts everywhere and at all times in effect assumed jurisdiction in personal injury cases, not only awarding discretionary damages, but also inflicting punishments, such as fines (e.g., Asher b. Jehiel, She'elot u-Teshuvot (1803), 13b, no. 13:14; Mordecai b. Hillel, Sefer Mordekhai, Kid. 554), and floggings (Sha'arei Ẓedek, 4:7:39; Halakhot Pesukot min ha-Ge'onim, 89; Teshuvot ha-Ge'onim, Sha'arei Teshuvah, 181; J. Weil, She'elot u-Teshuvot (1834), 8b–9b, no. 28; 23a–b, no. 87; et al.), as well as lesser penances such as fasting and beardshaving (Isaac b. Moses of Vienna, Or Zaru'a (1887); BK 51, no. 329; 52–53, no. 347). The legal basis for such punitive measures were normally *takkanot or local custom (Asher b. Jehiel, She'elot u-Teshuvot (1803), 1a (2nd pagination), 101:1), but courts certainly followed also the precedents provided by the usage of earlier authorities. It is said that an ancient ḥerem ("ḥerem kadmonim") hangs over those who do violence to others (Moses Isserles and Me'irat Einayim, Sh. Ar., ḤM 420:1), and that, on the strength of that ban, they may not be admitted to communal worship or any matter of ritual, unless the ḥerem was first lifted from them by order of the court, after compliance with any judgment that may have been given against them (M. Sofer, Ḥatam Sofer to Sh. Ar., ḤM (1958), 68a–b, no. 182). Notwithstanding this preexisting ḥerem, both the imposition of and the threatening with bans and excommunication was a common measure against violence (Meir b. Baruch of Rothenburg, She'elot u-Teshuvot Maharam… (1895), 12a, no. 81; 129a, no. 927; et al.).

[Haim Hermann Cohn]

In the State of Israel

Harming (a person) as a civil wrong (assault) is defined in section 23 of the Torts Ordinance (New Version) 5728–1968, as consisting of the intentional application of force of any kind on a person's body.

Harming (a person) as a criminal offense is defined in the Penal Law 5733–1977, in sections 34(24), 327–344. The Law distinguishes between grievous harm, namely, harm that causes permanent disfigurement or injury to the victim's body, and dangerous harm, meaning harm that endangers the individual's life. The law further prescribes different rules for harm with aggravated intent, harm under aggravated circumstances, harm caused with particular appurtenances, and negligent harm.

IN THE SUPREME COURTS

Harm as an Act of Self-Defense. An assailant's plea that he acted under the necessity of personal defense is discussed at length in the case of Afanjar v. State of Israel (33 (3) PD 141). The Supreme Court was required to resolve the question as to whether the necessity defense could be of avail to an accused who had used violence against policemen. The latter, dressed as civilians, had burst into an apartment in the dark of the night. The assailant claimed that he did not know that they were policemen and that he acted under the assumption that he was protecting the bodies and dignity of himself and his other friends in the apartment. The Supreme Court (Justice Elon) opened (pp. 150–51 of the judgment) with a discussion of the duty imposed upon every Jewish person to save another person from the hands of one who is pursuing him in order to kill him – a duty that appears in the Bible ("Do not stand idly by the blood of your fellow" – Lev 19:16) and in the Talmud (Sanh. 73a–74a) and is codified in the halakhah (Maim., Yad, Hilkhot Roẓe'aḥ u-Shemirat ha-Nefesh, 1.6–16). The judgment then continues with a discussion of the right to protection against an assailant even when there is no threat to life, as expounded in the post-Maimonidean responsa literature: "If one sees a Jew attack his fellow and he cannot rescue him without hitting the attacker, even though his blow is not lethal, he can hit the attacker in order to prevent him from committing a crime" (Piskei ha-Rosh, Baba Kamma, Ch. 3, §13). This was also the view of R. Solomon *Luria (Poland, 16th century – Yam shel Shelomo, Bava Kamma, Ch. 3, §9).

Regarding the permissible degree of force, the Court cited, inter alia, the comments of Mordecai, a contemporary of Asheri: "Similarly, if people are engaged in a fight, one should not push them; rather, they should be gently restrained. If he did push, he is answerable to him in court" (Mordekhai, Bava Kamma, §38; cf Asheri, ad loc.; R. Israel Isserlein (Poland, 15th century), Pesakim u-Ketavim §208; Teshuvot Maharam mi-Rothenburg, quoted in Mordekhai, Bava Kamma §196). The Court summed up the discussion with the comments of R. Joseph *Caro:

Where two people were fighting, if one person started, the second person is not liable, as he has the permission to injure him [the attacker] in order to save himself. However, it must be determined whether he could have saved himself by inflicting a minor injury but instead inflicted a major injury; [in such a case] he is liable. The same rule applies if one sees a Jew hitting his fellow and can only save him by hitting the attacker; in such a case, he can hit him in order to prevent him [the attacker] from committing the crime (Sh. Ar., ḤM 421:13) (ibid., 153–54)

Justice Elon summed up the rules emerging from this analysis, ruling:

(1) Under Jewish law, every person is obligated to come to the aid of his fellow if the victim is pursued by one who is, in light of the circumstances, about to inflict a life-threatening injury. If the pursuit [involves the threat of] a lesser injury, most halakhic authorities take the view that there is no obligation [to aid], but one is permitted to rescue his fellow, even by injuring the pursuer. It goes without saying that in both cases, the pursued himself has the right to self-defense.

(2) The above-mentioned permission and obligation [to rescue] applies to every person and with regard to any victim – even one not related to the rescuer. A fortiori, it is not premised on any relationship between the rescuer and the victim in the framework of which the rescuer is legally responsible for his supervision or welfare.

(3) The above-mentioned permission and obligation [to rescue] only apply if, under the circumstances, they are required in order to protect the victim from the pursuer – that is, so long as there is a fear that the pursuer will continue his attack on the victim. They do not apply if, in light of the circumstances, it appears that the danger has passed and the intervention of the "defender" is no longer of a defensive nature, but is based on other motives.

(4) The basic rule is that the amount of force used by the intervener to rescue the pursued must be proportionate. His exemption from criminal liability is conditional upon his using only the minimal amount of force necessary to rescue the pursued – in talmudic terminology, "that he could have saved him [the victim] by maiming a limb [of the pursuer]." "If he fails to do so, he is criminally liable for the injury he inflicts on the pursuer, and he certainly bears criminal responsibility if he kills him…" (ibid., 154).

This was the basis for the Court's acquittal of the appellant, and the Court stated that: "he was entitled under the principle of personal [self-]defense, to forcefully push the intruders through the door and out of the apartment. By doing so he sought, first of all, to prevent injury to himself … and the appellant could still claim that his actions were in the defense of others … to protect his 'pursued' friends from the two 'pursuers'… fearing injury or bodily harm to his friends" (ibid., 157–58).

In discussing the question raised by the judgment, the Court further discussed the question of the appropriate construction of concepts rooted in public policy and in a moral and social world-view. Summing up, the Court observed:

As we have seen, the principle of defending others involves concepts rooted in public policy and in a social and moral view of the duty to come to the aid of another person who is in danger of bodily injury. This conclusion is compelled by the logic and nature of civilized social life. We find this notion expressed by American and English legal scholars who see it as a matter of public policy and as "a peremotory response to injustice that the good man has ingrained," last and most important, this is the view reflected in the sources of Jewish law, in which the rule "Do not stand idly by the blood of your fellow" constitutes a basic principle of the world outlook of Judaism. In my opinion, fundamental concepts founded on moral attitudes and cultural values should be interpreted in the light of the moral and cultural heritage of Judaism (see also CA 461/62 Zim v. Mazier 17(2) PD 1319, 1332; CA 148/77 Roth v. Yeshupe, PD 33 (1) 617).

Harm Incidental to Medical Carethe Doctor's Liability in Negligence. Moral and legal questions arising in the area of medical practice have often been litigated from the perspective of the laws of causing harm, in both general and Jewish Law.

An example of this is provided by the case of Levital v. Health Fund Center (CA 552/66, 22 (2) PD 480) where the Supreme Court heard an appeal against the non-imposition of liability on a doctor in the wake of an injury caused during an operation. The Court cited the advice of Justice Denning, who warned against the imposition of exaggerated liability on surgeons, for reasons of public policy – i.e., to prevent a situation in which medical practitioners would be primarily concerned for their own welfare rather than that of the patient. The Israel Supreme Court (Justice Kister) added to this, ruling that Jewish Law distinguishes between an ordinary person who harms his fellow man – being forewarned by definition, and consequently liable even if acting inadvertently – and a doctor:

Jewish Law recognizes the consideration of public policy in the context of medical practitioners – and surgeons in particular. In principle, Jewish Law imposes liability on a person who harms his fellow man, even accidentally, because "a man is always forewarned," but liability was significantly reduced with respect to physicians engaged in their professions "with the court's permission"[i.e., in accordance with a license from a public authority]; that is to say – to the specific cases of negligence defined in the sources (Tos. BK 6:6, 9:3; Tos. Git. 3:13; these sources were the basis of *Naḥmanides' ruling in Torat Adam, Sha'ar ha-Sakanah (…); Resp. Tashbez, vol. 3, 82; Sh. Ar. YD. 336).

The physician's liability was limited for reasons of "public policy," as stated in the Tosefta and explained by Tashbez in the above-mentioned responsum, "for if we do not exempt him where there was an accident, people are liable to desist from healing." In his book Torat Adam, Naḥmanides sees an analogy between the role of the physician and that of the judge, who is commanded to adjudicate and to rule. On the one hand a judge must be cautious, and on the other hand he has nothing but the evidence before him. The same applies to the doctor, who is duty-bound to heal, and if he refrains from healing it is tantamount to bloodshed. Conversely, he must be cautious just as one must be "cautious in capital matters, and not cause harm by his negligence," but nevertheless, "it [treating patients] is not forbidden because of the fear of causing harm." Indeed, the physician is commanded to act in order to save the patient, and as such it would be injudicious of him to fear that he might fail, whether by dint of chance or accident, and avoid performing actions that he deems necessary in accordance with his evaluation of the circumstances. While it is true that science and technology have progressed since then, even today operations involve dangers, albeit of a lesser degree than in the past. Consequently, the doctor must occasionally operate even where it involves a certain degree of danger or the possibility of mistake or accident" (pp. 483–84 of judgment).

According to these principles, Justice Kister ruled that in the particular case the doctor's actions did not diverge from the boundaries of a reasonable mistake ("sheggagah") and liability should not be imposed.

Harm Incidental to Medical ActPerformance of Tissue Examination. Another medical matter adjudicated by the Supreme Court in which it relied on the principles of Jewish Law regarding harm is the Sharon v. Levi case (CA 548/78, 35 (1) PD 736).

The Supreme Court needed to decide whether a person may be compelled to perform a tissue test so as to clarify the paternity of a small child. The Court (Justice Elon) ruled that, in the absence of an explicit statutory provision, it was prohibited to compel a person to perform this kind of test, because it violates the basic right of every person to personal freedom, which includes the inviolability of his body. In substantiating its ruling, the Court invoked the provisions of Jewish Law, while discussing the boundaries of the prohibition on harming others, and the validity of a victim's consent [to be harmed]. "This basic right, as expressed in Jewish Law, is particularly instructive: 'he who strikes his neighbor with a blow inflicting less than a penny's worth of damage [i.e., without injuring him] transgresses a negative precept' (Sanh. 85b, Maim. Yad, Hilkhot Ḥovel u-Mazik 5:3). Moreover, even where the person being struck consents to it, his consent has no legal validity (BK 92a; Sh. Ar., ḤM. 420:1ff). What then is the legal source for permitting a person to let the blood (i.e., to wound) of another person in order to cure him? According to the amora Rav Matna (Sanh. 84b) this permission is not grounded in the patient's consent, whether express or implied, for, as stated above, his consent has no legal validity. The permission is derived, rather, from the verse "And thou shall love thy neighbor as thyself " (Lev 19:18) from which it is inferred, according to Rashi, that "Jews were only warned against doing the things to their fellow man that they would not want to do themselves" (Rashi, Sanh. 84b, S.V. ve-ahavta; cf. Kitvei Ramban (ed. Chavell, Jerusalem: Mosad Harav Kook, 1964))., Vol. II, Torat ha-Adam, 42ff.; M. Elon, "Halakhah and Modern Medicine" (Heb.), in: Molad, N.S. 4, 27 (5731–1971), 228, 232) (p. 755 of judgment).

A Wounded Person's Waiver Regarding Bodily Injuries. Another case in which the Supreme Court endorsed the approach of Jewish Law to bodily wounding was in Lagil Trampoline v. Nachmias (CA 285/73, 29 (1) 63). The case concerned a company operating a trampoline installation for sports purposes. The company claimed that it was not responsible for bodily damage caused to persons exercising on the installation, relying on a sign at the entry to the facilities that stated: "The company takes no responsibility for any accident, injury or wound caused to jumpers." Justice Kister invoked the approach of Jewish Law to the sanctity of life, and its implications: a person's obligation to take precautions so as not to cause injury to his fellow man (Tos. BK 23a); the duty to adopt measures to prevent injuries to others (Maim. Yad, Hilkhot Roẓe'aḥ u-Shemirat ha-Nefesh 11:1–4); the prohibition against a person injuring himself (Maim., ibid., §5); and the presumption that a person cannot give a waiver in respect of damage to his own body (BK 93a) (p. 80 of judgment). According to these principles, the Court ruled that, even though a waiver and a release from liability clause for bodily injury are not invariably invalid, the circumstances in the particular case in question precluded the imposition of a duty of care on the individual exercising, and hence the exemption clause should be voided (pp. 481–83 of judgment).

[Menachem Elon (2nd ed.)]

BIBLIOGRAPHY:

S. Assaf, Ha-Onshin Aharei Hatimat ha-Talmud (1922), index; S.V. Hovel ba-Havero; ET 7 (1956), S.V. "Dinei Kenasot," 376–82, ibid., 12 (1967) S.V. Hovel, 679–746; L. Finkelstein, Middle Ages, index. ADD. BIBLIOGRAPHY: M. Elon, Ha-Mishpat ha-Ivri (1988)1:9, 27, 97, 113, 130, 185, 405, 568, 637, 666; idem., Jewish Law (1994), I:8f, 29, 109, 127, 146, 207; 2:495, 698, 789, 823; idem., Jewish Law (Cases and Materials) (1999), 224–39; M. Elon and B. Lifshitz, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Sefarad u-Ẓefon Afrikah, vol. 2., 334; B. Lifshitz and E. Shochetman, Mafte'aḥ ha-She-elot ve-ha-Teshuvot shel Ḥakhmei Ashkenaz, Ẓarefat ve-Italyah (1997), 230.


Source: Encyclopaedia Judaica. © 2008 The Gale Group. All Rights Reserved.