Value Statements in ‘Legal’ Contexts:
SOME EXAMPLES FROM THE BAVLI
Richard L. Claman
Plainly, the Talmud1 contains extensive discussions arising from problems that appear to us to be problems of contract, tort and property law.
And it is normally assumed that the Talmud’s discussions were indeed intended to set forth ‘legal’ conclusions.
In particular, the ‘Mishpat Ivri‘ program, in Menachem Elon’s Jewish Law: History, e.g., Sources, Principles, contends, in short, that there is within the Talmud itself a distinctive body of what might be considered contract, tort and property law,2 which (a) is not inherently ‘religious,’ and (b) is as worthy a choice as a basis for the contract, tort or property law of the modern State of Israel as is U.S. or British precedent.3
We submit here, to the contrary, that the closer one examines, from a legal perspective, the Talmud’s ‘legal’ analyses, the more it appears that the Talmud is using ‘legal’ problems as the occasion for setting forth value statements of a very different, non-‘legal,’ sort, responding to a different, moral, agenda.
Accordingly, we will review the Talmud’s discussions of some problems that we would today consider basic, bedrock points of contract, tort and property law, and will argue that the Talmud’s results were aimed not at establishing workable “legal” principles, but rather at expressing, for instance, the moral distinction between how God judges and how man judges, or the distinction between the behavior expected of a Sage and that of the ordinary man.
Before we can proceed, a quick historical detour is necessary to clear away an important misconception. The Mishpat Ivri school also contends that at various times and places, the Talmud’s conclusions in these regards were in fact implemented and enforced by the Jewish political authorities of the time.
Even if that indeed were the case as a historical matter, that would not constitute evidence as to what the Sages of the Talmud intended. To the contrary, there is good reason to believe that the Geonim re-interpreted and transformed the Talmud in this regard to fit the need of their time for a code of Jewish law that would both (i) serve a parallel function to the contemporary Islamic Shari’a, and (ii) respond to the Karaite threat.
Thus Michael Chernick, in his ‘Introduction’ to the collection he edited, Essential Papers on the Talmud4 at p. 17 (fns. omitted) observes:
During the gaonic period, the first post-talmudic era in Babylonia (c. 750-1010), the Talmud became the third constitution of rabbinic Jewry, following the Bible and the Mishnah. The gaonate, the central legislative and academic institution of Babylonian Jewry, consciously used the Talmud in constitutional fashion. Among its activities were establishment of the rules for deciding the disputes that covered the Talmud’s pages and production of legal codes based on the Talmud. . . . The gaonic use of the Talmud was clearly pragmatic. Having received the right to autonomy under the Islamic Caliphs in Baghdad, the Jewish community had to find a means of self-governance. The Talmud provided the source for the community’s legal system. Modeling itself on the caliphate’s vision of an Islamic empire united by a uniform Islamic way of life, the gaonate sought to be the single authority through its efforts at standardization of Jewish practice. We need to recognize that the gaonic agenda conflicted directly with the Talmud’s open-endedness and pluralism, but it was culturally and politically appropriate to its time. While it abandoned the Talmud’s implicit ethos, it used the Talmud’s explicit dicta to preserve and advance Jewish life.
Moreover, as a matter of historical accuracy, it appears that the ‘civil law’ that was sought to be enforced, when Jewish communities had such power, was significantly different from the Talmudic halakhah; and indeed the Amoraim in Babylonia, and the medieval authorities, recognized that the Talmudic rules were ineffective as a body of civil ‘law,’ and so imposed in their stead very different rules. We see this already in a story told about R. Nahman, who imposed a substantial civil penalty upon a ‘thief,’ even though R. Nahman admitted that the Talmudic rule was that no penalty should be imposed. R. Nahman acknowledged that he so ordered solely because he thought the wrongdoer was a bad man, and that a substantial penalty was necessary as a deterrent in the interest of social order. (B.K. 96b.)
From a historical viewpoint, we need to bear in mind that
a. the Tannaim probably had virtually no practical impact on the day-to-day life of contemporaneous ordinary Jews – a point stressed recently by Lee Levine, Shaye Cohen, and others;5
b. the evidence from the synagogues of late antiquity excavated in Israel shows that the Rabbis had little practical influence even in the Amoraic period (see, e.g., again, Levine, and Seth Schwartz6); and while there is no extrinsic evidence (i.e., outside of the Talmud) as to Jewish life in Amoraic Babylonia, stories like that of R. Nahman, supra, suggest that to the extent Rabbis acted as judges there, they freely diverged from the Talmadic halakhah; and
c. the ‘civil law’ imposed by the medieval kehillahs – typically via lay tribunals, rather than rabbinic ‘courts’ – was not Talmudic law, but a mixture of the general trade customs of the land, special guild-like protectionist legislation to minimize competition within the Jewish communities, and new devices like the heter iskah.7 Not even the Mishpat Ivri school seeks a return to such ad hoc, mercantilistic, medieval rules.
In sum, the argument from history does not help the Mishpat Ivri, school, and to the contrary reinforces the conclusions we reach herein, investigating the Talmudic sources on a stand-alone, theoretical level.
Accordingly, we will here proceed as follows: for each of several ‘legal’ problems, we will begin by outlining the nature of the problem, and how it is addressed in modern American law. Obviously, we appreciate that our modern economic/legal system is very different from the Talmud’s. Our point in reviewing American law is simply to illustrate some of the practical concerns involved in establishing a workable legal system. Once we identify these practical concerns, we can better appreciate that the Talmud’s discussions themselves often recognize these same concerns – but then move in very different directions.
Our agenda here is not primarily to attack the Mishpat Ivri school. Rather, our focus is more general. Contemporary rabbis and philosophers, writing about halakhah in all of our Movements, regularly analogize halakhah and American law as the basis for their various arguments.
Very simply, if even in the most elementary ‘civil law’ contexts, the Talmud’s halakhah is not trying to be a legal system, but is trying to be something very different – a statement of values, – then this common and bedrock analogy needs to be abandoned. And the consequences of that abandonment may be quite liberating.8
A. When Is a Contract Not a Contract?
One critical issue in American contract law is to clearly define whether the parties’ discussions have matured to the point that there is a binding contract. Until that point, each side is free to shop elsewhere for a better deal, or otherwise withdraw, without any penalty. (Nor do we consider a businessperson to somehow be uncivil or morally deficient for calling off negotiations; we expect a businessperson to be looking for better deals, and assessing new information and changes in circumstances, right until the moment the contract is executed.) Once the line has been crossed, however, the parties are bound, and a breaching party will be liable for damages, and perhaps be compelled by the court to complete the performance as promised (i.e., specific performance). Also, for example, once a purchase contract is entered into, the purchaser becomes responsible for the risks of adverse changes (unless the parties specify otherwise), and must buy appropriate insurance. The definitional problem has re-emerged in recent years. As business transactions have grown more complicated, contracts are often negotiated in two stages: first, the businesspersons negotiate a ‘term sheet’ of the principal business terms (the price, the principal steps each party must perform, the principal warranties, and the principal scheduling items). Sometimes, a deposit is paid. The businesspersons also agree to turn the matter over to the lawyers, to prepare the full documentation. Suppose the purchaser withdraws after the term sheet has been agreed upon, but before the full documentation is signed: is the purchaser liable? The rule is that unless the term sheet clearly and definitely shows that it was intended to itself be a binding contract, it is not. Thus in Adjustrite Systems, Inc. v. GAB Business Systems, Inc., 145 F.3d 543 (2d Cir. 1998), the court explained:
Courts confronted with the issue of determining whether a preliminary agreement is binding . . . must keep two competing interests in mind. First, courts must be wary of ‘trapping parties in surprise contractual obligations that they never intended’ to undertake. Second, ‘courts (must) enforce and preserve agreements that were intended (to be) binding, despite a need for further documentation or further negotiation,’ for it is ‘the aim of contract law to gratify, not to defeat, expectations.’ [All internal citations omitted.]
The key, of course, is the intent of the parties: whether the parties intended to be bound, and if so, to what extent. ‘To discern that intent a court must look to the words and deeds (of the parties) which constitute objective signs in a given set of circumstances.’ Subjective evidence of intent, on the other hand, is generally not considered. . . .
We have identified four factors to be considered in determining whether the parties to a preliminary agreement that called for execution of a formal instrument intended to be bound in the absence of such an executed final instrument:
(1) whether there has been an express reservation of the right not be bound in the absence of a writing; (2) whether there has been partial performance of the contract; (3) whether all of the terms of the alleged contract have been agreed upon; and (4) whether the agreement at issue is the type of contract that is usually committed to writing.
The first factor, the language of the agreement, is ‘the most important.’9
The Talmud was also concerned with this problem. As we will see, the Talmud specified that, to constitute a binding commercial contract, there must be a definite, albeit symbolic, physical act of kinyan (i.e., acquisition). In particular, pulling on the goods to be acquired, or upon a symbolic substitute (referred to as a meshikhah) constitutes an assertion of rights of ownership to show that there is now a binding contract.
By contrast, for the Talmud, a verbal agreement, or even payment and acceptance of a downpayment, or even payment in advance of the full purchase price, is not sufficient, unless and until an act (again, at least a symbolic act) of kinyan has been performed.
The Mishnah in Baba Metzia 44a10 expresses the principle as follows:
This is the general principle. All movables acquire each other, e.g., if [A] drew into his possession [B’s] produce without paying him the money, he cannot retract. If he paid him the money but did not draw into his possession his produce, he can withdraw.
The Mishnah immediately continues, however:
But they [sc. the Sages] said: He who punished the generation of the flood and the generation of the dispersion, he will take vengeance of him who does not stand by his word. R. Simeon said: He who has the money in his hand has the advantage.
In other words, having first explained that there is no contract without the necessary formality of meshikhah, the Mishnah appears to suggest that ‘words,’ without meshikhah, nevertheless have an effect. In other words, non-contracts are nevertheless morally binding!
The Talmud begins to discuss this seeming paradox as follows (47b):
R. Yohanan said: By Biblical law, [the delivery of] money effects possession. Why then was it said meshikhah effects possession? Lest he [the vendor] say to him [the vendee], ‘Your wheat was burnt in the loft.’ But after all, whoever causes the fire must make compensation! But [for fear] lest a fire accidentally break out. Now, if the ownership is [still] vested in him [the vendor], he will wholeheartedly take pains to save it; if not, he will not do so.
I find this to be a remarkable analysis. In other words, according to R. Yohanan, the Rabbis deliberately changed Biblical law, to address a problem in allocation of business risk. According to the Torah, advance payment (whether of the full price or only a downpayment, is later discussed) marks a binding contract. In a world without insurance, however, this creates a practical problem, of how to address the risk of damage to the merchandise between the time of payment and the time of physical delivery; and so the Rabbis changed the Torah law, to allow the purchaser to regard the agreement as non-binding until he receives delivery (and ‘pulls’ on the merchandise).
(R. Yohanan’s study-partner, Resh Lakish, then tries to show that Biblical law itself required a pulling, and did not regard advance payment as sufficient to mark a binding contract. The Talmud then reviews the proof-texts he advances, and R. Yohanan’s analysis thereof, and apparently concludes that R. Yohanan is correct: the Rabbis indeed changed the Torah.)
The Talmud then addresses the second part of the Mishnah, the curse imposed by Sages on those who exercise their right to retract. (The Soncino translation refers to the curse as ‘But . . .’; the traditional shorthand is ‘mi she-para.‘) The Talmud first elaborates on the Mishnah, and creates a three-part structure, drawing upon a ‘beraita‘ (a Tannaitic source not included in the Mishnah). The text is as follows (47b-48a):
Has it not been taught: R. Simeon said: Though they [sc. the Sages] ruled, [The delivery of] a garment acquires the gold dinar, but not vice versa: that however, is only the halakhah but they also said, He who punished the generations of the Flood, and of the Dispersion, the inhabitants of Sodom and Gomorrah, and the Egyptians at the [Red] Sea, He will exact vengeance of him who does not stand by his word; and he who enters into a verbal transaction effects no title, yet he who retracts therefrom, the spirit of the Sages is displeased with him. Whereon Raba observed: We have no other [condemnation] than that the spirit of the Sages is displeased with him! For words accompanied by [the passage of] money one is subject to ‘BUT’; for words unaccompanied thereby one is not subject to ‘BUT.’
In other words: even though the Rabbis recognize the business necessity of requiring an act of kinyan to demarcate a contract, to the point that they deliberately overrode the Torah, nevertheless: (a) if you (the purchaser) exercise your right to withdraw after you have made an advance payment, you are subject to being cursed by the Rabbis; and (b) even if you have not yet made any advance payment, but merely verbally agreed on the price, and then exercised your right to withdraw, you are deemed a bad person!
The Talmud then notes that the curse is indeed a curse, and not merely a warning (48b):
It has been stated: Abaye said: He is [merely] told this. Raba said: He is anathematized. Abaye said: He is [merely] told this, because it is written, ‘And thou shalt not curse the ruler of thy people.’ Raba said: He is anathematized, because it is written, of thy people, implying [only] when he acts as is fitting for thy people.
The Talmud then discusses whether there is a difference in effect between a downpayment and a full advance payment (48b, 49a):
For [it once happened that] money was given to R. Hiyya b. Joseph [in advance payment] for salt. Subsequently salt rose in price. On his appearing before R. Yohanan, he ordered him: Go and deliver [it] to him [the purchaser], and if not, you must submit to [the curse]: He who punished. Now if you say that one is merely informed, did R. Hiyya b. Joseph come to submit to a curse of the Rabbi? But [what happened was that] only a deposit had been paid to R. Hiyya b. Joseph. He thought that he [the purchaser] was [morally] entitled only to the value thereof, whereupon R. Yohanan told him that he was entitled to the whole [of the purchase].
R. Kahana was given money [in advance payment] for flax. Subsequently flax appreciated, so he came before Rab. Deliver [the goods] to the value of the money you received, he said to him; but as for the rest, it is a mere verbal transaction, and a verbal transaction does not involve a breach of faith. For it has been stated: A verbal transaction: Rab said: It involves no breach of faith; R. Yohanan ruled: It does involve a breach of faith.
(The medievals generally sided here with R. Yohanan, against Rav, and ruled that breach of a purely ‘verbal’ agreement, i.e., without any act of kinyan, was morally improper. See Steinsaltz Edition at 87, summarizing:
‘Someone who makes a verbal agreement without making a monetary payment or delivering a pledge should keep his word. If he reneges on his promise, he is considered lacking in good faith, and such conduct met with the disapproval of the Sages,’ following Rabbi Yohanan’s view. Rema writes that if a person reneges on a promise because prices have changed, no breach of faith is involved (Razah, Rosh, and Tur). Others, however, disagree (Ramban and Rashba). Arukh HaShulhan agrees that no breach of faith is involved if a person reneges after prices change, but it is nevertheless not considered pious conduct to violate one’s promise in such cases. (Shulhan Arukh, Hoshen Mishpat 204:7,11.)
(The theoretical positions of the later commentators, and the general confusion apparent in their analyses, are addressed at length by Dr. Isaac Herzog in vol. 1 of The Main Institutions of Jewish Law.11)
After some further elaboration (which we will skip over here), the Talmud ends its discussion with a practical point: that the right to retract may be exercised by either the purchaser or the seller, that is, the agreement is not binding on either side until there is an act of meshikhah (49b):
A certain man gave money [in advance payment] for wine. Subsequently he learnt that one of the men of the Field-marshal Parzak intended to seize it. Thereupon he said to him: Return me my money: I do not want the wine. So he went before R. Hisda, who said to him: Just as meshikhah was instituted in favor of the vendor, so it was instituted in favor of the vendee, too.12
The Talmud never addresses the question that is most perplexing to an American lawyer in all of this: if I have a right to retract, and indeed there is a good policy reason why I have that right, sufficient to warrant overriding the Torah, why should I be morally condemned for exercising my right?
Elon recognizes that Talmudic results such as the mi she-para curse are problematic for his vision of Mishpat Ivri. But, in my view, he glides over the seriousness of the problem.13 Elon argues that there are simply different levels of obligation: the law prescribes a minimum level, and then morality adds one or more additional levels, backed up by moral sanctions. But the levels, Elon contends, can be kept discrete, and so one can shed, in trying to determine what the ‘law’ is, the more restrictive moral levels.
There are, I suggest, two defects in Elon’s answer; and exploration of each will yield further insight into the issue here.
First, Elon’s talk of levels of obligation considers matters only from the standpoint of the obligor, the party who received, e.g., the monetary downpayment.
A better legal analysis, I suggest, requires one to recognize that there are conflicting principles and purposes at issue in a problem like that of defining the boundary of contract. There is no simple ‘more’; and there is no simple ‘more moral.’ Enforcing verbal contracts means, among other things, creating more uncertainty as to whether in fact a contract was made, and affects the process of risk allocation.
Also, while it may be ‘more’ moral for the obligor (the person who received the downpayment) to fulfill the contract, consider matters from the perspective of the obligee! Would it not be ‘more moral’ for the obligee to recognize that there is a good economic reason for allowing the obligor to withdraw, and so desist from pressing for performance? How can it be ‘more’ moral to demand that someone else be subjected to a curse?
The root error lies here, as Herzog notes at one point, in the peculiar categorization of rights and duties set out by a turn-of-the-19th-century legal philosopher named Salmond, upon whom Elon relies.14 A better philosophy of law would stress the conflict of right vs. right, of duty vs. duty, at each level, taking into account both the perspective of the plaintiff and the defendant, and the need for a balance to be struck.15
In any event, Herzog, in discussing among other things the problem of mi she-para, notes the asymmetry in the Talmud’s moral analysis, and seeks to explain it as an example of an ancient doctrine pertaining to how the community of Sages should deal with others outside that community:
It appears that there existed in early times a species of code or body of rules (Mishnah) particularly designed for the guidance of men of piety and virtue (hasidim) in their commercial or contractual relations with men of the average ethical standard. This would seem to have borne the title of Mishnath Hasidim [referring to Yerushalmi, Terumoth 8:4]. The Mishnah incorporated in the Talmud exhibits many a trace of that pre-eminently ethico-legal collection. . . . Only considerations of practicability prevented, in general, the ‘higher law’ from crystallizing into actual enforceable law. [At 384-85]
Herzog’s suggestion would account, I suggest, for the asymmetry that we just observed in the Talmud, as well as for the Talmud’s impracticability.
Following Herzog, then, our Gemara is better understood, I suggest, not as addressing the general rule, but rather at setting forth a value statement as to how a pious obligor might behave, in building a fence against even the possibility of being unfair to another person.
A second flaw in Elon’s analysis is that it fails to explain why, in other, related, situations where one would expect an obligation (and at a minimum a moral obligation) to be imposed, none is.
Consider, for example, the case of a contract term that has a generally accepted meaning, but also a ‘minority’ meaning. The Talmud says that I can avoid what would be a contractual obligation based on the generally accepted meaning of the terms agreed upon, by pleading that I held a minority meaning of a key term.
[Why does the Mishnah, in talking about pitchers being left in a public place and their being broken, use two different terms, kad and havit, to refer to such pitchers, particularly since havit sometimes means barrel? To teach a law] regarding buying and selling . . . in a locality where, though the majority of people refer to kad (pitcher) by the term kad and to havit (barrel) by the term habit. You might perhaps have thought that the law [regarding technical terms in contracts of sale] follows the majority. [The Mishnah’s peculiar usage] therefore made known to us that we do not follow the majority in [disputes on] matters of money. [Bava Kamma 27a-27b].
To have a generally effective legal/economic system of contracts, however, one cannot allow a party to plead his or her ‘subjective’ meaning; if you play the ‘contract’ game, you are deemed to agree that the generally accepted meaning, as adopted by the court, will govern. See, e.g., Messina v. Lufthansa German Airlines, 47 N.Y.2d 111 (1979) (‘The parties, rather than inviting consideration of their intentions as of the time of contract formation [as to the meaning of certain words they used], have delegated the right to interpret their words to an objective tribunal’). Were this not so, business dealings across different regions, let alone different nations, would not be possible. Again, I believe that the Rabbis knew this, but sought to make a different point. (Herzog notes, as a general matter, that ‘on the whole, the ambit of [the doctrine of] Mistake seems to be much wider in Jewish than in English law.’)16
On a mi she-para analysis, one would expect that the person who disavowed an obligation based on a claim of subjective adherence to a minority understanding should at least be subject to moral condemnation for defeating the other party’s reasonable expectations. But here there is no condemnation.
I suggest that a better explanation of both the rules of mi she-para and of mistake/subjective understanding is to see the Talmud as trying to set forth a value statement that one’s word should be like a ‘neder,’ a vow. On the one hand, that means that one should fulfill what one intended to promise. On the other hand, a person should have an excuse from condemnation, based upon his or her actual subjective intent, event if that intent is unusual.
In sum, I suggest that what is most interesting about the Talmud’s discussion is how, at cross-purposes to the apparent problem; it has its own agenda, and makes its own value statement.
B. Tort Law And The Problem Of Causation.
Great Grandpa, who owned a house, was supposed to be baby-sitting his 4-year-old great-grandchild named Tymic. He did not notice, however, that the child was playing with a cigarette lighter. The child soon set fire to the bed, which started a fire in the house, and also caused the neighbor’s house to burn down. Neighbor sued the child’that is, neighbor’s insurance carrier sued the insurer for Tymic’s great-grandparents. The principal issue faced by the Court was whether Great Grandpa could be held liable (i.e., so that his insurer would be liable) for neighbor’s damages. The Court explained that a parent is liable ‘where the parent negligently entrusts a dangerous instrument to the care of a child.’ Tymic’s insurer argued that a cigarette lighter could not, as a matter of law, be considered a ‘dangerous instrument,’ but the Court disagreed. (The Court also addressed a second question’whether Tymic could himself be held liable, notwithstanding that he was only 4 years and 2 months old. The Court explained that a child over 4 years old may be held liable unless the child is ‘so lacking in intelligence and experience as to be incapable of appreciating the nature of the danger and of taking precautions to avoid injury to itself.’) Republic Ins. Co. v. Michel, 885 F. Supp. 426 (E.D.N.Y. 1995).
The result is, I think, unremarkable, as a matter of U.S. law: of course Great Grandpa should be liable for the neighbor’s damages, for, as between Great Grandpa and the neighbor, Great Grandpa was certainly responsible, in the sense that he could have taken precautions, but failed to do so.
The Torah, in Exodus ch. 22, contains a body of tort-law rules. For example, Ex. 22:5 provides:
When a fire is started and spreads to thorns, so that stacked, standing or growing grain is consumed, he who started the fire must make restitution. [New JPS Translation]
What then do the Rabbis of the Talmud do with this?
Baba Kamma 59b states:
MISHNAH. If a man sent out something burning through a deaf mute, an idiot, or a minor [and damage resulted] he would be exempt from the judgments of man, but liable in accordance with the judgments of heaven. But if he sent [it] through a normal person, the normal person would be liable. . . .
GEMARA. Resh Lakish said in the name of Hezikiah: The Mishnaic ruling holds good only where he handed over a [flickering] coal to [the deaf mute] who fanned it into flame, but if he handed over to him something already in flame he would be liable, the reason being that it was his acts that were the [immediate] cause. R. Yohanan, however, said: Even where he handed something already in flame to him, he would still be exempt, the reason being that it was the handling of the deaf mute that caused the damage; he could therefore not be liable unless where he handed over to him tinder, shavings and a light, in which case it was certainly his act that was the immediate cause.
The Talmud believed that a deaf-mute and an idiot lacked the mental capacity to form intent, e.g., to form the requisite intent to perform mitzvot; and a minor (before bar mitzvah) was likewise considered to lack the requisite capability to form the requisite intent. Accordingly, neither a mentally incapacitated person nor a minor can himself be held directly liable for damages for, e.g., starting a fire. m.B.K. VII(4).17
Accordingly, the damaged neighbor could try to look, in a case like Republic v. Michel, only to the adult who negligently entrusted the child with the flame. But the Rabbis ruled that a human court of law could not order any payment in this situation, although the Rabbis reassure us that God will render judgment.
But isn’t there a general principle of responsibility, of liability for negligent behavior? There is one Mishnah that appears to set forth such a general principle, but the Talmud proceeds to declare that the seemingly general statement of the Mishnah is really intended to refer only to two limited circumstances, so that indeed there is no general principle of negligence (BK 9b):
MISHNAH. Whenever I am under an obligation of controlling [anything in my possession], I am considered to have perpetrated [any damage that may result] . . . .
GEMARA. Our Rabbis taught: ‘Whenever I am under an obligation of controlling [anything in my possession], I am considered to have perpetrated any damage [that may result]. How is that? When an ox or pit which was left with a deaf-mute, an insane person or a minor, does damage, the owner is liable to indemnify. This, however, is not so with a fire.’
In Talmudic Law and the Modern State18, Dr. Moshe Silberg, former deputy President of the Supreme Court of Israel, tries to put as favorable a spin on the foregoing as possible:
There is a mishnah in the first chapter of the tractate Baba Kamma (a veritable jewel of language) the like of which in abstractness and brevity and conciseness of expression we have not found in all the six mishnaic orders. The splendor of antiquity hovers over it, and it appears that this is one of the ‘old halakhot,’ or a relic of an ancient book of laws, ‘A Book of Enactments.’ Thus is its golden formulation:
If I be responsible for the care of anything, I have legally rendered possible the damage it may cause. . . .
The meaning of this, according to simple statement of the text, is that whatever a person is obligated to watch over (lest it cause damage), and he did not watch over it and it caused damage, then he has rendered possible the act of damage and he must make restitution. . . .
But in truth, this is not the law, and the final decision does not agree with this. One cannot equate all monetary damages that may be caused by a person’s property, and the failure to fulfill the obligation of watchfulness does not always involve the duty of restitution. In the very mishnah which precedes the one quoted, and in many talmudic discussions which precede and follow it, there is a division of damages and the damaging agents into various categories and sub-categories: the ox, the pit, the grazing animal [the Hebrew term is maveh, which is also applied to ransacking by an intruder], and the fire; the horn, the tooth, and the foot; tam [‘innocent’ goring] and mu’ad [confirmed goring]; pebbles and various others . . . .
How can we reconcile all this with the blanket and unqualified statement of our early mishnah? The Tanna of the baraita, it seems, sensed this contradiction and attempted to reconcile these two divergent approaches to the subject of torts, through the use of an ukimta, a restrictive interpretation. With one stroke he narrowed the formerly wide purview of the principle of our mishnah and limited its application only to certain carefully defined, specific situations.
[The Gemara’s] interpretation changes the entire meaning of the statement ‘If I be responsible for the care of anything.’ The mishnah no longer refers to the passive act which negates the possibility of proper care, that is the handing-over of the tort-feasor to one who is not qualified to guard it properly.
But what about the neighbor whose field had been burned down: aside from belief that God will make everything right, what are we going to do?
The Talmud proceeds to note that giving a lit fire to a child is not the only case where we say that the human courts are powerless: there is a whole list of cases in this category. (BK 55b-56a):
It was taught: R. Joshua said: There are four acts for which the offender is exempt from the judgments of Man but liable to the judgments of heaven. They are these: To break down a fence in front of a neighbor’s animal [so that it gets out and does damage]; to bend over a neighbor’s standing corn in front of a fire; to hire false witnesses to give evidence; and to know of evidence in favor of another and not to testify on his behalf. . . .
But are there no more cases [of the same category]? Is there not the case of a man who does work with the Water of Purification or with the [Red] Heifer of Purification, where he is similarly exempt according to the judgments of Man but liable according to the judgments of Heaven? Again, is there not the case of one who placed deadly poison before the animal of a neighbor, where he is similarly exempt according to the judgments of Man but liable according to the judgments of Heaven? Again, is there not the case of the man who gives his fellow a fright, where he is similarly exempt from the judgments of Man but liable according to the judgments of heaven? And finally is there not the case of the man who, when his pitcher has broken on public ground, does not remove the potsherds, who, when his camel falls does not raise it, where R. Meir indeed makes him liable for any damage resulting therefrom, but the Sages hold that he is exempt from the judgments of Man though liable according to the judgments of Heaven? Yes, there are surely many more cases [to come under the same category]. . . .
The common element here is a peculiar view of causation.19 The Rabbis are prepared to hold a person liable for damages directly resulting from his own actions, but are categorically unwilling to expand the concept of causation (as determined in a human court of law) to include any sort of indirect effects. Even if you place deadly poison before your neighbor’s animal, it is the animal’s act of eating that poison that kills it, so the Rabbis refuse to judge you liable! Only God can deal with issues of indirect cause.
Viewed from the perspective of an American tort lawyer, this is silly and absurd. One of the key functions of tort law is to create a monetary incentive for people to take care: don’t we want people to refrain from giving torches to idiots? Another function is to compensate the injured: did the Rabbis really expect God to intervene regularly to compensate persons injured by indirect torts?
In short, the Rabbis could have taken the rules in Ex. 22 and generalized them to create a workable tort system: instead, they limited, and changed the focus of, the Biblical rules, to yield something that is unworkable as a system of tort law.
Again, Elon notes the problem, and slides over it. He remarks20 that ‘in Jewish tort law it sometimes happens that one who injures another is not legally liable for damages, because of an absence of a direct causal relation between his act and the resulting injuries . . . [Emphasis added].’
The casual reader would hardly appreciate how limited the Talmud’s sense is of the concept of ‘direct causal relationship.’ Moreover, the term ‘sometimes’ seems to obscure that this is a critical and common class of cases.
Elon assumes that there is a tort law system in the Talmud, and tries to minimize its deficiencies. A fairer starting point, I submit, is to re-examine whether there really was intended, in view of the huge deficit, to be a system in the first place.
I suggest, instead, that the Rabbis were deliberately uninterested in erecting a system of tort law because they were, rather, interested in trying to define, for an individual member of the community of sages and disciples, what constitutes wrongful behavior, which a member of that community will of course avoid, whether the penalty is monetary, or God’s displeasure. And in defining wrongful behavior, addressing the viewpoint of that actor, there is no reason to distinguish between what we in America call tort law, and what we call criminal law; if it’s wrong, just don’t do it. The distinction between a wrong against a neighbor justifying compensation, and a wrong against the public peace (against the State, or against God), is, for the Rabbis, unnecessary. Only one penalty need be imposed; and imposition of a ‘criminal’ penalty exempted one from a civil penalty! As an example of how the Rabbis collapse together what we call tort and criminal law, consider the following Mishnah (from B.K. 34b):
So also where cattle has caused fire to be set to a barn on the day of Sabbath there is [civil] liability. Whereas were the owner to set fire to a barn on Sabbath there would be no [civil] liability, as he would be subject to a capital charge.
Again, this is of little assistance to the neighbor.
As in the case of contract law noted above, we see here a deliberately asymmetric focus on the actor, rather than the action as a two-sided matter. Also again, we see a concern with subjectivity, and a refusal to impose an objective judgment. The Rabbis just didn’t want to get involved themselves as judges of other persons’ intent. This is a theological statement: only God can know what is in a man’s heart; for us, i.e., for our community, we should simply count on each other to act with good intent.
This won’t work, as a legal system; but it is an interesting and powerful moral statement, in a completely different direction.
In short, what the Rabbis have done, in what appears to be a discussion of tort (or criminal) law, is to use these venues to deliver a statement about God, man, judging and intent.
C. The Problem of Justifying Restrictions on a Person’s Use af His Real Property
In American law, as a matter of ‘common law,’ if I own real property, e.g., a condominium unit in a residential building, I am free to use my property for residential use, or for any business use ‘ almost regardless of how my business use may be disruptive of my neighbors’ residential uses. Principles of ‘nuisance’ law place some restraint on my behavior, but as a practical matter, very little.
Accordingly, ‘zoning law’ has developed, to set aside areas of the city for residential use, and different sorts of business uses. Zoning laws are legislative creations: for example, we simply vote to decide that a particular area of the city should be dedicated to industrial use. There is no ‘legal’ principled basis for such selection: it is a matter of pragmatics and the historical development of different areas. Accordingly, for example, in New York City, in a residential district, you may not conduct a business out of your ‘home,’ except within narrow limits, e.g., no employees (except that a doctor may have a nurse); only 25% of the floor area may be used for business, and no business signs are permitted.
The Mishnah in Baba Batra, Ch. II, sets out a series of what an American lawyer would immediately recognize as zoning regulation. The Mishnah, for example, states (B.B. 17a, 20b, 24b):
MISHNAH. A man should not dig a pit [in his own field] close to the pit of his neighbor, nor a ditch nor a cave nor a water-channel nor a fuller’s pool, unless he keeps them at least three hand-breadths from his neighbor’s wall and plasters [the sides]. A man should keep olive refuse, dung, salt, lime, and flint stones at least three hand-breadths from his neighbor’s wall or plaster it over. Seeds, plough furrows, and urine should be kept three handbreadths from the wall. Millstones should be kept three handbreadths away reckoning from the upper stone, which means four from the lower stone. An oven should be kept three hand-breadths reckoning from the foot of the base, which means four from the top of the base.
An oven should not be fixed in a room unless there is above it an empty space of at least four cubits. If it is fixed in an upper chamber, there must be under it paved flooring at least three handbreadths thick. For a small stove one handbreadth is enough. If in spite of these precautions damage is caused, the owner of the oven must pay for the damage. R. Simeon, however, said that all these limitations were only laid down with the idea that if after observing them he still causes damage, he is not liable to pay. A man should not open a bakery or a dyer’s workshop under his neighbor’s storehouse, nor a cowshed. In point of fact the Rabbis permitted [a bakery or dyer’s workshop to be opened] under wine, but not a cowshed.
A fixed threshing-floor must be kept fifty cubits from a town. A man should not fix a threshing-floor on his own estate unless there is a clear space all round of fifty cubits. He must keep it away from the plantation of his neighbor and his ploughed fallow a sufficient distance to prevent damage being caused.
What is striking in reading these, and the Talmudic discussions thereon, is that there is virtually no citation to any Biblical authority for any of this. Apparently, the Rabbis recognized that we are dealing here with out-and-out legislation. The Mishnah records, after many pages of the foregoing, only one dissenter from this approach (25b):
A tree must be kept away from a pit [in a neighbor’s field] twenty-five cubits, a sycamore or a carob fifty cubits; it makes no difference whether the tree is on higher or lower ground or on a level with the pit. If the pit was there first, the owner can have the tree cut down on giving compensation. If the tree was there first, he can not have it cut down. If there is a doubt which was there first, he cannot have it cut down. R. Jose, however, says that even if the pit was there before the tree the owner cannot have the tree cut down, because this one digs in his property, the other plants in his.
R. Yose apparently believed that there should be no zoning legislation: if I want to plant a tree, with extending roots, on my property, that is my right, whether or not you wish to construct a cistern that would be destroyed by the tree, or have already done so, on yours.
If all we had was the Mishnah, I think we’d conclude that the halakhah was in favor of zoning legislation, and against R. Yose’s lone dissent therefrom.
The Talmud explicates, however (BB 25b):
R. Judah says in the name of Samuel: the halakhah is according to R. Yose. R. Ashi said: When we studied with R. Kahana we used to say that R. Yose admits that a man is responsible for damage of which he is the cause [literally, ‘for his own arrows’].
That’s it. No Biblical citations. No statement of rationale. Just, R. Yose wins.
And the caveat, that R. Yose agrees that principles of ‘nuisance’ will nevertheless apply, is of even less assistance than in American law, because of the Rabbis’ limited concept of what it means for one neighbor to cause damage to another. The Talmud provides the following example (BM 117a) of what R. Yose means by causation. Suppose there is a two-story building with an upstairs and a downstairs resident. When the upstairs resident washes, water leaks into the ground-floor unit. R. Yose’s position is that if the water fell down directly through cracks in the plaster, the upper-floor resident must repair the plaster. But ‘if the water was interrupted and only subsequently fell down’ i.e., if the water ran along the floor and descended through the walls, the upper-floor resident is not required to take any corrective action!
Anyone who has ever dealt with, e.g., a leaking roof knows that the practical problem is never that the water is falling straight down through some visible hole in the roof; rather, the water has run along some membrane, or behind some flashing, and is descending far from the spot of the leak. I presume that the Rabbis had the same experience.
But given that nuisance law is thus so limited (by the restrictive definition of indirect causation), isn’t the need for zoning legislation even greater?
But it is legislation: it is not about inherently, morally, wrongful conduct. And so, even though the Rabbis of the Mishnah were prepared to legislate, the later Rabbis of the Talmud drew back: if the result was an unworkable body of law, at least we are not labelling conduct as wrongful that is really just a legislative determination of what is desirable in a given location.
As a general matter, it would appear that the Sages of the Gemara engaged in less legislation than the Rabbis of the Mishnah. Compare, for example, Elon’s list of Tannaitic legislation, in Jewish Law, vol. 2, at pp. 558-621, with his vague and shorter discussion of legislation in the Amoraic period, at 622-642.
The reluctance to legislate may also be a sign that we are not dealing here with a functioning ‘legal’ system, but rather something else. A leading Reform scholar has argued, talking about the possibility of a viable ‘halakhah‘ today, as follows:
Jewish law is no longer a normal legal system. It lacks one of the two prime essentials of such a system. A normal system contains two sources of law, legislation and interpretation.21
Perhaps the Amoraim already felt this problem, and determined to address it by concentrating their efforts on the continuing moral content, where perhaps interpretation alone was sufficient.
The Rabbis’ focus on the subjective moral actor, even at the expense of public order, is also evidenced in the following example:
R. Hisda dispatched [the following query] to R. Nachman: . . . There was a well belonging to two persons. It was used by them on alternate days. One of them, however, came and used it on a day not his. The other party said to him: ‘this day is mine!’ But as the latter paid no heed to that, he took a blade of a hoe and struck him with it. R. Nachman thereupon replied: No harm if he would have struck him a hundred times with the blade of the hoe. For even according to the view that a man may not take the law in his own hands [lo avid inish dina linafshe] for the protection of his interests, in a case where an irreparable loss is pending, he is certainly entitled to do so.
It has indeed been stated: Rav Judah said: No man may take the law into his own hands for the protection of his interests, whereas R. Nahman said: A man may take the law into his own hands for the protection of his interests. In a case where an irreparable loss is pending, no two opinions exist that he may take the law into his own hands for the protection of his interests: the difference of opinion is only where no irreparable loss is pending. Rav Judah maintains that no man may take the law into his own hands for the [alleged] protection of his interests, for since no irreparable loss is pending let him resort to the Judge; whereas R. Nahman says that a man may take the law into his own hands for the protection of his interests, for since he acts in accordance with [the prescriptions of the] law, why [need he] take the trouble [to go to Court]? [B.K. 27b]
And the codifiers understood the Talmud to side with R. Nahman, although they tried to narrow the circumstances in which self-help was permitted, by requiring, e.g., that you must of course be able to prove in court that you are right. See, e.g., discussion in the ‘Artscroll’ tr. at 27b, fn. 23.
Contrast, e.g., the classic American text-book case of Kirby v. Foster, 17 R.I. 437, 22 A. 1111 (1891):
The law does not permit parties to take the settlement of conflicting claims into their own hands. It gives a right of defense, but not of redress. The circumstances may be exasperating; the remedy at law may seem to be inadequate; but still the injured party cannot be arbiter of his own claim. Public order and the public peace are of greater consequence than a private right or an occasional hardship.
The Rabbis of course understood the need for public order; indeed, one of the seven Noahide commandments requires one to live in a place where there are courts. Just as in the examples above, however, it appears that while the Rabbis’ focus on the moral order sometimes created additional levels of stringency, it also paradoxically created additional freedoms from obligation. In the self-help case, the Rabbis’ peculiar agenda and purpose have produced an oddly libertarian moral statement. What appears to be a paradoxical juxtaposition of stringency and leniency can be seen, I suggest, as self-consistent, if we view these discussions as a moral statement, responding to a different, non-legal agenda.
The approach advocated here can be applied, I believe, broadly within the Talmud. For example, it accounts for some of the well-known peculiarities, from a ‘legal’ viewpoint, in the Talmud’s consideration of evidentiary principles, particularly in the context of capital cases. The discussion here has been deliberately limited, however, to relatively dry, prosaic, foundational ‘civil’ law points: if even such discussions can be shown to be setting forth an agenda of value statements, the general argument is, I suggest, more compelling.
Moreover, the correct characterization of the Talmud’s discussion is not just an academic matter. We have, here in America, a rather dramatic and optimistic picture of how law can evolve: an imaginative and creative judge like Benjamin Cardozo simply extracts (or pretends to extract) new understandings from the existing precedents, to address the concerns of the modern age. See, e.g., MacPherson v. Buick Motor Co., 217 N.Y. 382 (1916).
But one cannot, I believe, change value systems in this top-down way. Brown v. Board of Education helped change America’s attitudes toward race, but could not act alone, nor completely. Value systems change, if at all, by a complex mixture of top-down and bottom-up, grass-roots evolution. Nor can one legislate a value-system.
If we can better appreciate what the Rabbis of the Talmud were seeking to achieve, and the limitations in which they operated, we may find a model closer-to-home for our own confrontation today with the values underlying the halakhah.
2M. Elon, Jewish Law: History, Sources, Principles (Philadelphia: Jewish Publ. Society, 1994) (B. Auerbach and M. Sykes, trans.), e.g., vol. 1 at 122-123.
See, e.g., Ze’ev Falk, “Review of Jewish Law” in 11 J.L. Religion 835 (1995) (critiquing Elon’s claim).
4(New York: NYU Press, 1994)
5See, e.g., Lee I. Levine, The Rabbinic Class of Roman Palestine in Late Antiquity (New York: JTS, 1989) pp. 76-83; Shaye J.D. Cohen, ‘The Place of the Rabbi in Jewish Society of the Second Century’ in L. Levine, al., The Galilee in Late Antiquity (New York: JTS, 1992).
6E.g., Lee Levine, ‘The Sages and the Synagogue in Late Antiquity: The Evidence of the Galilee,’ in Levine, ed., supra; Seth Schwartz, Imperialism and Jewish Society, 200 B.C.E. To 640 C.E. (Princeton: Princeton University Press, 2001), pp. 119-128, 259.
7See, e.g., Steven Friedell, ‘Jewish Tort Law Remedies Not Based on Torah Law An Approach Based on the Ran and the Rivash,’ Jewish Political Studies Review 10:3-4 (Fall 1998), pp. 47-66. See also H.H. Ben-Sasson, ‘The Middle Ages,’ pp. 674-687 in H.H. Ben-Sasson, ed., A History of the Jewish People (Cambridge, MA: Harvard University Press, 1976); David Biale, Power and Powerlessness in Jewish History (New York: Schocken Books, 1986), pp. 78-83; Jacob Katz, Tradition and Crisis: Jewish Society at the End of the Middle Ages (Bernard Dov Cooperman, trans.) (New York: Schocken Books, 1993), ch. 10, pp. 76-89.
8See my article, ‘A Philosophic Basis for Halakhic Pluralism,’ Conservative Judaism 54(1) (Fall 2001), pp. 60-80.
9One might ask: Why should one call the foregoing test a clear rule, when it looks like a list of factors? One somewhat paradoxical conclusion of recent legal philosophy, associated with Duncan Kennedy, is that a rule stated in the form of a multi-factor “standard” may in fact be more definite and clear in real-world application than a statement made in a seemingly more rule-like way (e.g., the speed limit is 55 m.p.h.). For example, the “rule” of the defense of contributory negligence looks clear, until you take into account the exceptions each in turn seemingly clearly-stated of “last clear chance,” etc., and the exceptions thereto, etc. The resulting structure of “rules” and “exceptions” in fact grew over time to be so complex that in the real world juries could not help but apply them erratically. As a result, American law has shifted to a “standard” of “contributory” negligence, in which the jury is asked to simply apportion the relative responsibility of the parties, based on a consideration of all the relevant factors. And the result has been greater consistency in practice. Again, this point is not unique to law. Consider the question: do I tell my friend that her dress fits her badly? (This is, I hope, clearly not a legal question.) My “moral” system may approach this via a ping-ponging structure of rules and exceptions: on the other hand, always tell the truth; but, on the other hand, don’t say anything hurtful; but, back to the first hand, always give information that your friend will need to avoid embarrassment, etc. Or, my moral code may provide a standard: e.g., speak to the extent that your speech is likely to be, in your best judgment, helpful to the recipient, bearing in mind that the truth is generally likely to be helpful.
10All translations here, of both Mishnah and Gemara texts, are from the “Soncino” translation of the Babylonian Talmud, unless otherwise noted.
11Dr. Isaac Herzog, The Main Institutions of Jewish Law, Volume One: The Law of Property (New York: Soncino, 1936).
12It seems that somewhere in its reasoning the Talmud inverted the positions of vendor and vendee. The commentators are thus forced to explain why R. Yohanan’s original explanation was really intended to justify giving the right of retraction in the first instance to the seller, and only secondarily to the purchaser.
13Cf. Elon’s op. cit., discussion in vol. 1, at 148, and generally, pp. 141-189.
14See Herzog’s questioning of Salmond’s analysis in Main Institutions, vol. 1 at 386. John Salmond first published his treatise on Jurisprudence in 1903. For Elon’s reliance on Salmond, see, e.g., Jewish Law at 230-232, 979.
15See generally, e.g., R.H. Coase, ‘The Problem of Social Cost’, Journal of Law and Economics 3 (1960), 1.
16Herzog, Main Institutions, Volume Two: The Law of Obligations, at 118. See also Irwin Haut, ‘Kad and Havit,’ The Jewish Law Annual XIII (1994) pp. 87-100, finding no intrinsic point to the Talmud’s discussion, and contending that the stam ‘created our sugia intending no practical or halakhic consequence whatsoever, but merely as an exposition for the sake of Torah and its study and glorification. . .’
17See generally Horowitz, The Spirit of Jewish Law, 134 (New York: Block, 1953).
18(New York: Burning Bush Press, 1973) (Ben Zion Bokser, trans.), pp. 11-12.
19See generally, the following articles by Steven Friedell: ‘Some Observations on the Talmudic Law of Torts,’ 15 Rutgers L.J. 897 (1984); ‘Aaron Kirschenbaum on Equity in Jewish Law,’ 1993 B.Y.U.L. Rev. 909; and ‘Jewish Tort Law Remedies Not Based on Torah Law An Approach Based on the Ran and the Rivash,’ Jewish Political Studies Review 10:3-4 (Fall 1998), pp. 47-66.
20Op. cit. Vol. 1 at 145.
21Solomon Freehof, “Reform Judaism and the Halakha,” CCAR Annual (1946), reprinted in Blau, supra, 320, at 327.