The Principal Categories of Torts
The liability of various tortfeasors is discussed in relative detail in the Torah. Four principal cases are considered:
(1) where someone opens a pit into which an animal falls and dies (Ex. 21:33–4);
(2) where cattle trespass into the fields of others and do damage (Ex. 22:4);
(3) where someone lights a fire which spreads to neighboring fields (Ex. 22:5);
(4) where an ox gores man or beast (Ex. 21:28–32, 35–6). To those has to be added the case where a man injures his fellow or damages his property (Ex. 21:18–19, 22–5; Lev. 24:18–20). The Talmud calls the cases contained in the Torah primary categories of damage (*Avot Nezikin) and these serve as archetypes for similar groups of torts. The principal categories of animal torts are shen (tooth) – where the animal causes damage by consuming; regel (foot) – where the animal causes damage by walking in its normal manner; and keren (horn) – where the animal causes damage by goring with the intention of doing harm or does any other kind of unusual damage. The other principal categories of damage are bor (pit) – any nuisance which ipso facto causes damage; esh (fire) – anything which causes damage when spread by the wind; and direct damage by man to another's person or property. These principal categories and their derivative rules were expanded to form a complete and homogeneous legal system embracing many other factual situations. As a result they were capable of dealing with any case of tortious liability which might arise.
The Basis of Liability – Negligence
The Talmud states that a man could be held liable only for damage caused by his negligence (peshi'ah), and not for damage through an accident (ones). Negligence is defined as conduct which the tortfeasor should have foreseen would cause damage (BK 21b; 52a/b; 99b), since this would be the normal result of such conduct. Thus liability would be incurred for a fire which spread in an ordinary wind (BK 56a) or for fencing a courtyard with thorns in a place frequented by the public who habitually lean against this fence (BK 29b).
The rabbis ruled that negligence was to be determined objectively. A man is liable for conduct which people would normally foresee as likely to cause damage (see R. Ulla's statement, BK 27b; Tosef. BK 10:29). On the other hand, if his conduct was such that most people would not normally foresee it as likely to cause damage, the damage is considered a mishap and not a consequence of his act and he is not liable (see Rif, Halakhot on BK 61b). Even if the defendant was of above-average intelligence and foresaw that damage would occur, he could not be held liable for conduct causing damage if most people would not have foreseen damage as resulting from such conduct. In such circumstances no liability would be incurred under human law for even willful damage (see Ra'ah and Meiri in Shitah Mekubbeẓet, BK 56a, beginning U-le-Rav Ashi) unless the damage claimed was depredation (BK 27a). However, rabbinical enactments created liability for deliberate acts in certain cases in the interests of public policy (Git. 53a; Tosef. Git. 4 (3):6). The objective criterion of negligence was also applied where the tortfeasor was of below-average intelligence and incapable of foreseeing the possibility of damage. However, the deaf-mute, idiot, and minor are not liable for the damage they cause, since they have no understanding and cannot be expected to foresee the consequences of their actions. Indeed, since they frequently do cause damage, those encountering them should take suitable precautions, and if they fail to do so would themselves be liable for the resulting damage. In this respect damage caused by the deaf-mute, idiot, and minor can be compared to damage by cattle on public ground for which the owners are not liable since the injured party himself is bound to take precautions.
This test of negligence was applied to all the principal categories of damage mentioned in the Torah (see BK 55b and Rashi beginning ke-ein). Thus, if an animal was injured by falling into an inadequately covered pit, the owner of the pit was liable. On the other hand, if the pit were properly covered but the cover became decayed, he would not be liable (BK 52a). Similarly, the owner of the pit would be liable if a young ox, incapable of looking after itself, fell into an open pit, but not if the ox were fully grown and fell into the pit during the daytime (Milḥamot ha-Shem 52b ad finem). Likewise, liability would be incurred for a fire which spread in a normal wind but not where it spread in an unusual wind (BK 56a); and the owner of cattle which consumed and trampled on crops in another's field would be liable for the damage only if the control he exercised over his cattle was insufficient to prevent this kind of damage (BK 55b, 56a).
As to damage done by man directly, the Mishnah states: he is always Mu'ad (forewarned, and therefore liable for the consequences), whether he acted intentionally or inadvertently,
No Liability Where No Negligence Exists
Cases where the defendant is entirely exempt from liability because he was in no way negligent are of two kinds:
(1) the plaintiff himself was negligent because he should have foreseen the possibility of damage i.e., where the defendant acted in the usual way and the plaintiff acted in an unusual way and the damage was therefore unforeseeable;
(2) neither party could have foreseen the possibility of damage and therefore neither was negligent. An instance of the second kind is where an animal, kept under sufficient control, escaped in an unusual manner and did damage, and no liability would be incurred (BK 55b). Similarly, where an animal managed to start a fire or dig a pit which caused damage, no liability would be incurred since such an unusual eventuality could not have been foreseen (see the Ravad in the Shitah Mekubbeẓet, BK 48a beginning "Mat"; BK 22a). The Talmud cites examples where no liability would be incurred, such as where an animal fell into a pit whose covering was originally adequate but which later became decayed (BK 52a); where a wall or tree unexpectedly fell onto the highway (BK 6b); where a fire spread further than could have been anticipated (BK 61b); where a burning coal was given to a deaf-mute, idiot, or minor who set fire to something (BK 59b); or experts such as physicians who acted in the usual professional manner and caused damage (Tosef. BK 9:11). As instances of the first kind the Talmud cites the case where a person running along the street collided with and was injured by another walking along the street; here the former alone would be liable since his conduct was unusual (BK 32a). Similarly, if a man broke his vessel against a beam carried by the man walking in front of him, the owner of the beam would not be liable. Aliter, however, if the owner of the beam stopped unexpectedly, thereby causing the vessel to strike the beam and break (loc. cit.). Likewise, a person who places his objects on public ground where they are damaged by animals walking or grazing in a normal manner has no claim against the owner of the animals, since animals are to be expected on public ground (BK 19b, 20a). However, the presence of a pit, fire, or a goring ox on public ground would cause liability for damage since they are not normally present and people do not expect them and take no precautions (BK 27b). It would also be unusual behavior and therefore negligence to enter another's premises or bring chattels or livestock therein, without permission. Since his presence was unexpected the owner of the premises would not be liable for damage caused to the trespasser or his property, but the trespasser would be liable for damage caused to the owner or his property (BK 47a–b, 48a).
Sometimes a person is injured even though both parties behaved in the usual manner, e.g., when both walk in the street or if one enters the premises of another with permission. In these cases the tortfeasor is not liable because the other party should have taken precautions as he ought to have foreseen the normal behavior of the tortfeasor. Likewise, damage may occur when both parties behave in an unusual manner as where both were running along the street or where both entered the premises of a third party without permission (ibid., 32a; 48a/b); in these cases too, the tortfeasor is exempt, since the fact that he was behaving abnormally should have made him foresee that others may behave abnormally too (Tos. BK 48b, S.V. "Sheneihem").
If without negligence a man creates a situation which is likely to cause damage, he will not be liable for damage caused before he had a reasonable opportunity to know about the situation and remove it. An objective test was laid down as to when a man should have known of the existence of the nuisance and acted to remove it. If he adequately covered his pit and through no fault of his own the pit was uncovered he would not be liable for damage during the period that most people would not have known that the pit had become open and required covering (BK 52a). Similarly, if his animal escaped from his courtyard through no fault of his own, and caused damage during the period in which he could not have been expected to realize that the animal had escaped and to recapture it, he would not be liable (see BK 58a and Meiri in the Shitah Mekubbeẓet on 55b beginning "nifreẓah"). Similarly if a man's vessels broke non-negligently on the highway and, without intending to abandon them, he left them there, he is liable, except for damage caused by them before they could have been removed (BK 29a). Similarly, the owner of a wall or a tree which fell onto the highway and caused damage would be liable only if he knew that they were in a bad condition or was warned that they might fall (BK 6b).
The foreseeability test as the basis of liability for damage led the rabbis to conclude that even where negligent the tortfeasor would only be liable for damage that he could foresee. He is not liable for additional or other damage, or damage greater than that foreseeable. Thus where a fire spread in an ordinary wind the tortfeasor would be liable for whatever could be seen to be within the path of the fire but not for what was hidden, unless, according to R. Judah, he should have contemplated
The foreseeability test would appear to determine liability for indirect damage (*gerama) where the damage is the ultimate consequence of the defendant's act. Only if the defendant should have foreseen the damage occurring would he be held liable for indirect damage.
Unusual Damage by Cattle
Unusual animal torts, such as goring, lie between liability in negligence for foreseeable damage and exemption for accidental damage. In such cases the animal's owners are liable for half-damages (BK 14a). But if the animal was a habitual gorer, having gored three times, the owner would be liable for full damage, since the damage was neither unusual nor unforeseeable. On the other hand, the owner would be completely exempt if he was not negligent at all. Thus, if the defendant's animal gored the plaintiff on the defendant's premises, no liability would normally be incurred since the defendant could not have foreseen that the plaintiff would enter his premises.
Defenses to Negligence
A person who negligently causes damage is not liable for damages in three situations:
(1) where he received permission from the plaintiff to cause damage (BK 92a, 93a), e.g., was allowed to feed his cattle in the plaintiff 's field;
(2) where the defendant, in his capacity as a court official was given permission by a court to harm the plaintiff, e.g., by administering punishment (Tosef. BK 9:11);
(3) where the damage inflicted was nonphysical, e.g., distress and sorrow (where there is no physical pain), or economic or commercial damage (BK 98a); for liability for damage is restricted to physical damage.
Damage Committed by the Person and by His Property
A distinction is found in several places in the Talmud between damage by a person and damage by his property (BK 4a; 4b). The difference is that liability for damage by the person is confined to negligent acts of commission whereas liability for damage by his property can also be incurred by negligent acts of omission. Thus, a man who spilt another's wine must pay for the damage, whereas if he saw the other's wine spill and did nothing to help him recover it, he would not be liable. On the other hand, the defendant whose ox grazed in the plaintiff 's field would be liable for damage caused by the animal either because he put the ox there or because he did not adequately prevent its escape. Similarly, a man who did nothing to prevent a stray fire from spreading onto the highway would not be liable even though he was able to prevent the fire's spreading. He would be liable, however, if he caused the fire negligently or if he did not prevent the spread of a fire from his own premises, even though he did not start it.
Where damage was caused by the negligence of two or more persons, the parties are liable in equal proportions. If the plaintiff and the defendant were equally negligent, the plaintiff recovers half damages from the defendant and loses the remainder (see Tos. BK 23a, S.V. "U-Leḥayyev"). The negligence of each tortfeasor is one of two types:
(1) where he should have foreseen that his negligence alone would cause damage;
(2) where he should have foreseen that damage would result from his conduct, coupled with that of the other tortfeasor, even though his conduct alone would not be expected to lead to damage.
Thus if two men dug a pit together, they would both be held liable in negligence for damage caused by the pit (BK 51a). However, if only one of them was negligent, he alone is liable. Thus, a man who concealed sharp pieces of glass in his neighbor's dilapidated wall which the latter was about to pull down onto public ground would be liable in negligence to anyone injured by the glass pieces, whereas the neighbor would incur no liability since he could not have anticipated the presence of glass pieces in his wall (BK 30a). Similarly, someone who put objects by the side of a man sleeping would be solely liable if the latter broke the objects in his sleep (TJ. BK 2:8, 3a).
Where damage was caused by two tortfeasors, the first leading the second to perform the act, the rabbis were divided as to the liability of the party performing the damage. Examples of such cases, which are known as Garme (see *Gerama and *Garme), include informing about another's property which leads to its seizure (BK 117a) and the hiring of false witnesses (BK 55b). In each case the party performing the damage had a choice as to whether to act tortiously or not. If he had no choice in the matter because of lack of intelligence or the required expertise, he is no more than a tool in the hand of
The Israel law of torts is covered by the Civil Wrongs Ordinance (1944, new version 1968), originally enacted by the British Mandatory authorities, which came into force in 1947, and several amendments enacted by the Knesset. The ordinance is modeled on English law and section 2 explicitly refers to English law for explanations of, and supplements to, the ordinance.
Ch. Tchernowitz, Shi'urim ba-Talmud, 1 (1913); Gulak, Yesodei, 2 (1922), 201–37; idem, in: Tarbiz, 6 (1935), 383–95; B.B. Lieberman, in: Journal of Comparative Legislation, 9 (1927), 231–40, I.S. Zuri, Torat ha-Mishpat ha-Ezraḥi ha-Ivri, 3, pt. 1 (1937); J.J. Weinberg, Meḥkarim ba-Talmud, 1 (1937/38), 180ff.; J.S. Ben-Meir, in: Sinai, 7 (1940), 295–308; G. Horowitz, The Spirit of Jewish Law (1953), 569–623; B. Cohen, in: Studi in onore di Pietro de Francisci, 1 (1954), 305–36; reprinted in his: Jewish and Roman Law (1966), 578–609, addenda; ibid. 788–92; S.J. Zevin, in: Sinai, 50 (1961/62), 88–95; idem, in: Torah she-be-Al-Peh, 4 (1962), 9–17; Sh. Albeck, Pesher Dinei ha-Nezikin ba-Talmud (1965); Elon, Mafte'aḥ, 181–8. ADD. BIBLIOGRAPHY: M. Elon, Ha-Mishpat ha-Ivri (1988), 1:128, 138, 185, 341f., 495f., 498, 648, 750f., 823f.; 2:868; 3:1370, 1381; ibid, Jewish Law (1994), 1:144, 156, 207, 410f; 2:602f., 607, 802, 925f., 1008f.; 3:1060; 4:1635, 1645; idem, Jewish Law (Cases and Materials) (1999), 50ff., 145ff.; M. Elon and B. Lifshitz, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Sefarad u-Ẓefon Afrikah (legal digest) (1986), 2:293–99; B. Lifshitz and E. Shochetman, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Ashkenaz, Ẓarefat ve-Italyah (legal digest) (1997), 204–07; A. Sheinfeld, Nezikin, (1992); Y.S. Kaplan, "Elements of Tort in the Jewish Law of Surety," in: Shenaton ha-Mishpat ha-Ivri, 9–10 (1982–83), 359–96; Y.S. Kaplan and R. Perry, "Tort Liability of Recalcitrant Husbands," in: Tel Aviv University Law Review, 28 (2005), 773–869.