In Jewish law, once the tortfeasor's liability for the damage has been established and he is ordered to compensate for the loss, the measure of damages requires determination. This is done by assessing the market price of the damaged object prior to and subsequent to sustained damage (see BK 84b on injury suffered by an animal or person); the difference is the amount which the tortfeasor has to pay (BK 11a). In this way, the party who has suffered damage is enabled to purchase on the market an object such as was his before it was damaged, which damage is thereby annulled. If the damaged object is not sold separately on the market but as part of a larger unit only, the difference between the assessed market price of the unit – i.e., undamaged and with the damaged part – is the measure of compensation. Thus, for example, the owner of an animal which has consumed a row of unripe fruit in another's field, does not pay according to the value of the fruit eaten by his animal – as no one buys unripe fruit, which is valueless. Instead – it being customary for merchants to buy a large field of yet unripened fruit – the market price of the fruit in a large field is assessed, with and without the row in question respectively, and the difference is the measure of damages. Another opinion maintains that the measure is the difference between the respective market values of the land itself when sold with and without the row of fruit (see Yam shel Shelomo BK 6:18). The sages of the Talmud are divided on the question of the size of the field to be taken as the standard for valuing the damaged row, i.e., whether it should be 60 times the size of the row, or larger (BK 58b, 59b). Similarly, if injury is caused to the embryo of an animal, the measure of damages is the difference between the market values of the animal, pregnant and otherwise respectively, but the embryo itself is not assessed, for it is valueless – nor is it assessed as if it were already born (Shitah Mekubbeẓet BK 47a, S.V. amar rava).
In terms of this assessment, the tortfeasor does not compensate the injured party for any future loss of profits which result from the injury (Tos. to BK 34a, S.V. shilmale), nor for the loss of any benefits which could have been derived from the use of the damaged object, except insofar as such may already be accounted for in reducing the market price of the damaged object, at the time the damage was sustained. This rule is consistent with the principle that the tortfeasor is liable only for such damage as he ought to have foreseen at the time of his wrongful conduct, but not for any other or more
extensive damage (see *Torts ). The reason for this is that any loss of profits not reflected in the market price is a loss which is not foreseeable, and one which people accordingly do not make allowance for in the price they are prepared to pay on the market. For this reason too the tortfeasor does not compensate for any damage which the injured party could have avoided after suffering injury, since the former could not have foreseen that the latter would not do so. (Tos. to BK 10b, S.V. lo; BK 85b, on the failure to observe medical instructions in a case of personal injury.)
Where a person could not have foreseen that his conduct would cause damage, he is in the position of an "anus" (i.e., the consequences are caused by a mischance) and is absolved from liability (see *Torts ); however if he benefits from the damage caused to another, as in the case where his animal eats vegetables left by another on a public road so that he does not have to feed it, he is liable to the injured party to the extent of the benefit derived (BK 20a:55b).
Assessment of Damages for Personal Injuries
A person who willfully, or by gross negligence (karov la-mezid), inflicts bodily harm (ḥabbalah) on another, must pay compensation to the latter, not only for the nezek ("loss," "damage") but also under four additional headings: ẓa'ar ("pain and suffering"), rippui ("medical expenses"), shevet ("loss of earnings"), and boshet ("humiliation"; detailed in ḤM 420). Nezek is assessed as in the case of damage to property, i.e., by comparing the injured party to a slave and estimating the respective prices he would fetch if sold as such on the market before and after the injury, the difference being the measure of compensation. This estimate takes account of the difference between the remuneration that could be earned for the heavy work he would have done if healthy and that which he shall earn for the work he can do having a disability (compare Abbaye's words "shevet gedolah," BK 86a; and R. Isaac in TJ, BK 8:3, 6b). Ẓa'ar is assessed by estimating what a person, like the injured, would be prepared to pay to avoid the pain resulting from the injury as by way of narcotics or a drug; rippui is an estimate of the medical expenses to be incurred by the injured in order to be cured; shevet is the estimated loss of remuneration which the injured could have earned during the period of his illness; boshet is assessed according to the social position of both parties (BK 8:1). Because of the difficulty in measuring boshet in monetary terms, the sages at various times determined fixed measures for various acts of boshet, thus, e.g., 200 zuz for a slap on the face, 400 zuz for pulling a man's hair or spitting on him – the tannaim already being in dispute as to whether these measures were for the rich or for the poor (BK 8:6). Where the injured party suffers damage under one or some of the five headings only, the injuring party compensates him accordingly: thus if the injured party suffers boshet or rippui only, the latter compensates him under these headings alone.
Compensation for damage under the above four headings, excluding nezek, is payable only in the case of bodily harm inflicted willfully, or by gross negligence, caused by the wrongdoer's person (Rashi to BK end of 26a). There is no liability for boshet in the absence of an intention to harm or shame (BK 8:1). The interpretation of the commentators is that there is liability for nezek even when resulting from mischance (ones), and no liability under the other four headings except when resulting from negligent or willful conduct. But it may also be argued that there is liability for nezek in the case of negligence only, while a man is not liable under the other four headings unless the conduct is willful, or grossly negligent. It would seem that the reason for confining liability under the aforesaid four headings to the case where an injury is willfully inflicted by one person on the body of another (and not by a person on an animal or by an animal on a person), whereas for nezek there is liability in all the above cases, stems from the principle that the tortfeasor's liability for compensation is confined to such damage only as he could have foreseen at the time of causing the injury. Hence, inasmuch as damage under the said four categories of compensation varies from one injured party to another, the tortfeasor cannot be required to have foreseen the measures of each relevant to the particular injured party except when he has willfully inflicted a bodily injury by his own hand, because in such case, having seen the injured party to whom he was about to cause harm, he should have known the measure of ẓa'ar, rippui, shevet, and boshet peculiar to this particular injured person. Insofar as the said four categories of damage accompany every case of ḥabbalah and thus their scope should therefore be foreseen by the tortfeasor, they are apparently already included in the assessment of the nezek. Moreover, even where compensation is payable under all five headings specifically, payment is made to the extent of the foreseeable measure of each only and in no larger measure. Thus if an assessment of compensation for an injury has been made, this amount of damages only is payable, even if the health of the injured party should thereafter deteriorate unexpectedly (BK 91a).
Already in the talmudic period – in Babylonia, and certainly in other countries – many judges would not give judgment for damages under one or more of these five categories. Some would not award compensation for boshet, or even nezek; it was not necessary as a deterrent because damage of this type was not common, and the judges outside Ereẓ Israel, not being ordained by the rabbis of Ereẓ Israel, did not feel themselves qualified to deal with such matters (BK 84b). Also in the post-talmudic period damages were not awarded under one or more of these categories according to law (Sh. Ar., ḤM 1:2), but rather the tortfeasor would be placed under a ban or punished in some other manner until he effected a reconciliation with the injured party and reached agreement with him on an equitable compensation (Piskei ha-Rosh BK 8:3).
Payment of damages may be made in money or in chattels having a monetary value and sold on the market; land, to serve as a means of payment, must be "of the best" (ibid. BK 7a). The damages are looked upon as a debt due to the injured party, in the same way as a loan or any other debt. However
there are traces in the Talmud of a view that payment of damages is a penalty serving to punish the wrongdoer for his conduct and is not merely compensation (Albeck, Hashlamot ve-Tosafot to his edition of the Mishnah BK 1:3). Some sages hold the opinion that payment of "half-damages" in the case of shor tam (ox that has not gored before – see *Avot Nezikin ) is a fine (BK 15a), and therefore payment of "half-damages" was not sanctioned in Babylonia and in other countries as from the talmudic period (BK 15b).
The law of the State of Israel determines that the damages due to the injured party are the amount required to restore him, subjectively speaking, to the position in which he would have been but for suffering the injury. The measure of damages varies therefore not only according to the damage actually incurred, but also in accordance with the individual circumstances of the injured party.
A Fixed Sum for Damages
As noted above, for certain types of damage the Sages assessed and determined payment of a fixed sum.
The Jerusalem District Court adjudicated a case concerning a man who publicly hit another man in the face with his fist (CA [Jer] 507/00 Silberg u Sha'ir, 2 PSM (5760) 289). The parties requested that the Court adjudicate their case in accordance with Jewish Law. The assailant argued that payment in this kind of case fell into the category of a fine so that in accordance with Maimonides' ruling, he should only have to pay the fixed sum determined by the halakhah: "Many blows involve humiliation and some pain, but no irreparable bodily injury. The Sages previously assigned fixed sums for such blows… and all of them constitute fines. The fixed sum paid covers pain [ẓa'ar], embarrassment [boshet], medical expenses [rpipui] and lost work time [shevet]…" (Maim. Yad, Hovel u-Mazik 3.8)
The Court (Judge Y. Adiel) rejected the assailant's argument, relying on Bet Yosef (at Tur, ḤM 420.34;), who rules that Maimonides' comments only refer to a case in which the blow lacks the force required to cause severe bodily injury. Only then does the fixed sum replace individual compensation under each of the main headings of damage. In the case of a stronger blow, one liable to cause severe physical injury, even Maimonides would concur that compensation must be made for each of the relevant headings of damage, based upon a separate assessment for each heading.
In the case at hand, the Court determined that the blow was capable of causing severe bodily harm; hence, the payment of a fixed sum was not applicable. Even so, in the absence of any irreversible injury, compensation was only awarded under the four heads of damage. (Maim., ibid., 2.2; Sh. Ar., ḤM 420.5).
Damages – Li-Fenim mi-Shurat ha-Din (Beyond the Letter of the Law)
There are cases in Jewish law in which the strict law does not allow the court to impose payment on the assailant, yet the assailant is still liable under "the Law of Heaven" – that is, morally culpable. The authorities ruled that the practical import of such liability is that the Court must inform the guilty party that, while it cannot impose monetary payment on him, he is still morally obligated to discharge his liability and pay the plaintiff (R. Shlomo Luria, Yam Shel Shlomo, BK 6.6). Other authorities even ruled that he is disqualified as a witness until he pays, because he is in possession of stolen money (Me'iri, on BK 56a).
On occasion, the contemporary rabbinical courts obligate the assailant to pay part of the damages by choosing the path of compromise (see *Compromise ). For example, when damage occurs by way of gerama (damage resulting indirectly from the assailant's action. See *Gerama and Garme). In such cases, the courts do not obligate the assailant to pay in the framework of damages, but instead rule that he must pay under the law of compromise. The rabbinical court ensures the execution of justice by resorting to the institution of compromise when the strict law does not provide a remedy (see, e.g., the rulings of the Kiryat Arba Regional Court, vol. I, page 205, and the index there; Rabbi Z.N. Goldberg, "Shivḥei ha-Pesharah," in: Mishpetei Areẓ (2002).
As noted, another means of achieving the same goal is by the principle of li-fenim mi-shurat ha-din ("being more generous than the law requires"). This issue was adjudicated in the Israeli civil court. In the Kitan ruling (CA 350/77 Kitan v. Weiss, PD 33(2) 785), the Israeli Supreme Court reversed a lower court's award of compensation for damages in a claim submitted by the relatives of a man murdered by a worker in a factory. The worker killed the man with a gun given him by the factory for work purposes. The respondents argued that, due to the worker's problematic mental state, the factory should have foreseen that his possession of a weapon was fraught with danger. Hence, they argued, the factory should be required to compensate the victim's family. The appeal was rejected due to "lack of the required causal connection between the appellant's (i.e. the factory's) negligence, and the killing of the deceased (page 808 of the ruling).
In terms of strict law all three presiding judges (Justices Shamgar, Witkon, and Elon) concurred with this conclusion. In his ruling, Judge Elon added that it would be appropriate for the factory to go beyond the strict law and compensate the relatives of the deceased:
For Judaism has a tradition, and there is a fundamental principle of Jewish Law, that along with strict liability, there is an additional obligation to act beyond the dictates of strict law (li-fenim mi-shurat ha-din). It is of particular significance here that this obligation found its chief expressions in the field of torts in a case relating to a problem identical to the one at hand. (ibid., 809).
Judge Elon states further:
In the development of the principle of "going beyond the letter of the law" in Jewish law, many halakhic authorities took the position that in certain circumstances this approach is mandatory. This is attested to by Rabbi Joel Sirkes, one of the leading
Sages in Poland at the end of the 16th and the first half of the 17th century, in his commentary Bayit Hadash (Bah) on the Tur: "It is customary in every Jewish court to compel the wealthy to pay where proper and appropriate, even where the letter of the law goes against it" (Bah on Tur, ḤM 12.4; see Menachem Elon, Jewish Law, 1:155f.).
This approach is anchored in the broader worldview of Jewish law, that finds expression, inter alia, in the well-known principle that "the giving of charity may be compelled" (TB, Ket. 49b), although this principle too is only exercised under certain conditions and circumstances. As is known, this rule constitutes the basis for the duty to provide maintenance for children and relatives under certain circumstances, even when this duty does not exist under strict law (see Jewish Law , 1:116f).
In the Israeli legal system, no person is compelled to act more generously than the law requires; such action is left to the [personal] initiative and will of the litigant. Yet under certain circumstances, it seems appropriate for the expression of such a wish to originate with the judge sitting on the dais-and here, too, the tradition of Jewish law provides a firm basis for this approach. In this context, Justice Elon wrote elsewhere that:
The halakhic system clearly distinguishes between normative rulings, accompanied by judicially enforceable sanctions, and rulings lacking such sanction. Yet the source and background common to legal rulings and to moral imperatives have brought about the following substantive phenomenon within the world of halakhah: The legal system itself; in its role as such, occasionally makes reference to a moral imperative unaccompanied by coercion on the part of the court. Hence, even when there is no legal recourse to coercion, this does not absolve the Court of its judicial responsibility in the particular case. A rabbinical authority in his responsa, and Jewish courts in their rulings, should all include the moral imperative – to the extent that it exists – as part of their response or ruling on the matter under discussion. (Jewish Law, I. 145f.; cf ibid., 619–620).
Personally, I would hope that the appellant, whose position is supported by strict law, will act more generously, and compensate the respondents, just as he originally proposed. This will fulfill what the wisest of all men taught us: "So follow the way of the good and keep to the paths of the just" (Prov. 2:20), this being the source for the principle of going beyond the letter of the law (Jewish Law, I:809–10).
President Shamgar demurs from the aforementioned approach of Judge Elon "that seeks to elevate payment of compensation li-fenim mi-shurat ha-din to the status of a settled general principal of the law of torts," due to "the absence of clear standards"; [the danger of] "filing frivolous appeals"; and other reasons (ibid., 805). This was also the position of Justice Witkon, who felt that granting compensation beyond the letter of the law should be left to the discretion of the person who would have to pay it. He explains, "I would not recommend blurring the boundaries between liability and non-liability" (ibid., 807).
Further on in his judgment, Judge Elon added, in explaining his position:
I believe that it is fitting, as I emphasized, that in certain circumstances the court should make such a request. As to the effect of that request, I completely agree with the following statement of my distinguished colleague, Justice Witkon, for whom I have the utmost respect: "I too will be happy if the respondents receive some measure of compensation, but the matter is entirely in the discretion of the appellant, and I would not propose to obscure the boundary between liability and non-liability."
What are the particular circumstances in the matter before us? The District Court found the appellant liable, by law, to compensate the respondents. The appellant believed – and, it turned out, correctly – that by law he was not liable to compensate the respondents; but in consideration of the circumstances of the case he offered, to pay a certain sum lifnim mi-shurat hadin. The majority of this Court held that, in fact, the appellant's negligence was proved, but that the causal connection between this negligence and the death of the respondents' relative was not proved; we therefore absolved the appellant, under the law, from liability to compensate the respondents. Why should we now refrain from expressing our wish that the appellant, who started to perform the mitzvah [lit. "commandment," and in colloquial usage "good deed"] of li-fenim mi-shurat ha-din continue and complete what he began
These are the specific circumstances of the matter before us, and the Court should consider whether it is proper under the special circumstances of each case coming before it to express such a request. It need not be pointed out that appellants who think they can submit frivolous appeals will soon discover that not only will there be no suggestion by us that respondents do more than the law requires of them, but such appellants will also incur appropriate costs for conducting vexatious litigation against the respondents and for wasting the Court's time.
I do not share the apprehension that it would engender confusion in the law were we to express our view and make the parties aware that in certain circumstances one should act more generously than the law requires. Courts regularly make decisions based on considerations of justice, equity, good faith, public welfare, equal protection, and locus standi in matters on which property and life itself depend. They are not deterred by fear that these standards are vague or, Heaven forbid, that on occasion they may reach an unfair result. It should therefore be presumed that the Courts will find their way in this matter where law and morality intersect and will be capable of soundly weighing up, in light of the circumstances of each case, whether to request – and it would be only a request – that the injured party be compensated li-ferim mi-shurat ha-din.
If we are apprehensive about the danger of combining morality with law, we should be equally concerned with the manner in which the law itself is applied. My colleague points out that, in the case before us, the injury occurred in 1965 and the final judgment was given in 1979. How does the judgment look to the parties and to us when it is given – and to our sorrow this is not a rare occurrence – after the passage of two full sabbatical cycles [fourteen years], and we see [the injustice] yet are powerless to afford any remedy? Perhaps when parties recognize the value of acting lifnim mi-shurat ha-din in appropriate circumstances, there will even be a decrease in the innumerable legal actions for strictly legal relief, which are not always necessary, and thus the heavy burden on the courts may possibly be reduced somewhat (ibid. 811),
The gist of the aforementioned ruling was quoted again in a ruling rendered some time later (CA 842/79 Ness and Others u Golda and Others, PD 36(1) 204, by President Moshe Landau and Justices Menachem Elon and Dou Levin), per the comments of Justice Elon (220–221):
There is a rule in Jewish law that when someone injures another person, and due to a lack of the required causal connection between the tortfeasor's negligence and the act itself; he is legally exempt from damage payments, under certain circumstances he will still be obligated to pay in order to "meet his Heavenly obligation" (see, for example, TB, BK 55b). It is therefore appropriate for the court to inform the litigants accordingly [i.e., of their obligation to meet their heavenly obligation] (see Ra'avan , BK 55b).
This compensation for damage, whether total or partial, is likewise anchored in the great principle of li-fenim mi-shurat ha-din. The Sages, in fact, based that principle on a homily of the wisest of all men: 'That thou mayest walk in the way of goodmen, and keep the paths of the righteous' (Prov., 2:20)." (See TB. BM 83a; see Kitan v. Weiss; see Ha-Mishpat ha-Ivri , ibid.). As mentioned above, Golda's conduct provided no grounds to prevent their receiving the apartment back, for it had never left their ownership. It certainly provided no grounds to make them incur payment for the damage suffered by Davidman. Yet without a doubt, their own conduct as well played no small part, as detailed above, in making Davidman buy the apartment from Nes under his mistaken belief in good faith that Nes was the true owner. Under such circumstances, it would be appropriate for Golda to provide some compensation to Davidman for the damage caused him-his payment of £740,000 to Nes for the apartment. Ibis could be fulfilled by their returning to Davidman the entire sum that they had received from Nes for the apartment, which was now returned to them, including a sum of £50,000 lawfully owed them by Nes for having breached the contract with them. Under this strict law, C'Tolda is not bound by any such obligation. Rather, it is a request of them to act li-fenim mi-shurat ha-din. By such means they could "walk in the way of good men, and keep the paths of the righteous."
It would seem appropriate for this topic to emerge anew with the enactment of the Basic Laws of 1992, whose declared purpose is "to entrench within a Basic Law the values of the State of Israel as a Jewish and Democratic State." According to these laws, a prominent role is accorded to Jewish law within the values of the State of Israel as a Jewish State. A central issue in the process of combining Jewish and democratic values is the relationship between law and morality. According to these Basic Laws, Jewish values and the emphasis placed on them, precede the democratic values.
Under the law and in terms of propriety, in circumstances such as these, the Court should stress these values and incorporate them in its ruling, namely the duty stemming from these values to go beyond the letter of the law, and to compensate the victim for damages done to him.
For a detailed discussion of this, see the entry: *Law and Morality.
The Law in the State of Israel
The Civil Wrongs Ordinance (New Version) 1968 regulates the payment of compensation for damages. Section 76 provides that a victim is paid compensation "only in respect of such damage as would naturally arise in the usual course of events, and which directly arose from the defendant's civil wrong." This condition bears a certain resemblance to the position of Jewish law to the extent that it exempts the tortfeasor for indirectly caused damage (see *Gerama and Garme). On the other hand, the scope of liability in tort under section 76 is far broader than under Jewish law. Moreover, section 76 provides that awarding compensation is dependent upon the plaintiff specifying the damage he sustained.
Damages caused by traffic accidents are adjudicated under a special law – the Road Accident Victims (Compensation) Law, 5735 – 1975.
All of those laws will be interpreted in accordance with, and in light of, the values of the State of Israel as a Jewish and Democratic state, as elaborated in our discussion above.
[Menachem Elon (2nd ed.)]
Sources:Gulak, Yesodei, 2 (1922), 14ff., 22ff., 31f., 211ff.; idem, Le-Ḥeker Toledot ha-Mishpat ha-Ivri bi-Tekufat ha-Talmud, 1 (Dinei Karka'ot) (1929), 28–30, 33n. 2, 34n. 2; idem, Toledot ha-Mishpat be-Yisrael bi-Tekufat ha-Talmud, 1 (Ha-Ḥiyyuv ve-Shi'bbudav) (1939), 43f., 95n.35, 109–11, 124, 141f., Herzog, Instit, 1 (1936), 211, 359; ET, 1 (19513), 81f.; 2 (1949), 167; 3 (1951), 42–50, 161f.; 7 (1956), 376–82; Z. Karl, in: Mazkeret Levi… Freund (1953), 29–32, 46–52; S. Albeck, Pesher Dinei ha-Nezikin ba-Talmud (1965); M. Elon, Ha-Mishpat ha-Ivri (1988), 1:129f., 258, 341f., 486f., 495, 532; 2:885; idem, Jewish Law (1994), I:145f., 302, 410f.; 2:591f, 602, 648; 3:1078f.; idem, Jewish Law (Cases and Materials) (1999), 50–52; M. Elon, B. Lifshitz, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Sefarad u-Ẓefon Afrikah, 2 (1986), 293, 299; S. Albeck, Pesher Dinei Nezikin ba-Talmud (1965); A. Guulak, Yesodei, (1922). 2:14ff., 22ff., 31f., 211ff.; idem, Le-Ḥeker Toledot ha-Mishpat ha-Ivri bi-Tekufat ha-Talmud, 1 (Dinei Kurka'ot) (1929), 28–30, 33 n. 2, 34 n. 2; idem, Toledot ha-Mishpat be-Yisrael bi-Tekufat ha-Talmud, (Ha-Ḥiyyuv ve-Shibbudav) (1939), 1:43f., 95n. 35, 109; 2:124, 141f.; Herzog, Institutes, 1 (1936), 211, 359; ET, 1 (19511), 81f; 2 (1949), 167; 3 (1951), 42–50, 161f.; 7 (1956), 376–82; Z. Karl, in: Mazkerethevi… Freund (1953), 29–32, 46–52; B. Lifshitz, E. Shohetman, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Ashkenaz, Ẓarefat ve-Italya (1997), 204–7; A. Sheinfeld, Nezikin (Ḥok le-Yisrael, N. Rakover (ed.)), 5752.
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