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Chapter 2 Tort Liability in Maimonides
CHAPTER 2 TORT LIABILITY IN MAIMONIDES’ CODE (MISHNEH TORAH): THE DOWNSIDE OF THE COMMON INTERPRETATION A. INTRODUCTION: THE MODERN STUDY OF JEWISH TORT THEORY AS A STORY OF “SELF- MIRRORING” B. THE OWNERSHIP AND STRICT LIABILITY THEORY VS. THE FAULT-BASED THEORY (PESHIAH) (1) The Difficulties of the Concept of Peshiah (2) The Common Interpretation of the Code: The “Ownership and Strict Liability Theory” C. EXEGETICAL AND CONCEPTUAL DIFFICULTIES OF THE COMMON INTERPRETATION OF MAIMONIDES (1) Maimonides did not Impose Comprehensive Strict Liability on the Tortfeasor (2) Maimonides’ Use of the Term Peshiah in Different Places (3) The Theory of Ownership Contradicts Various Rulings in the Code (4) The Problem with Finding a Convincing Rationale for the Ownership Theory D. DIFFICULTIES IN UNDERSTANDING SOME ELEMENTS OF TORT LIABILITY MENTIONED IN THE CODE (1) Rulings that are Difficult to Interpret according to Either Ownership or Fault-Based Theories (2) Providing a Rationale for the Exemption in Tort (3) Standard of Care in Damages Caused by a Person to the Property of Another: Absolute/Strict Liability or Negligence? (4) Deterrence of Risk-Causing Behavior E. RE-EXAMINING THE OPENING CHAPTER OF THE BOOK OF TORTS IN THE CODE: CONTROL AS A CENTRAL ELEMENT OF LIABILITY IN TORT F. CONCLUSION 1 A. INTRODUCTION: THE MODERN STUDY OF JEWISH TORT THEORY AS A STORY OF “SELF- MIRRORING” Isidore Twersky showed us that “[t]o a great extent the study of Maimonides is a story of ‘self- mirroring’,”1 and that the answers given by modern and medieval scholars and rabbis to some questions on the concepts of Maimonides “were as different as their evaluations of Maimonides, tempered of course by their own ideological convictions and/or related contingencies.”2 Maimonides’ opening passages of the Book of Torts (Sefer Nezikin) in the Code (Mishneh Torah) can also be described as a story of “self-mirroring”. -
Parshat Vayishlach Dec 13-14, 2019
Thank you to Steve & Vivian Dorfman for sponsoring this week's Tefilla Notebook in memory of Steve's mother, Anne Gendis, Chana Braina bat Yosef a"h, whose yahrtzeit is on 20 Kislev. 16 Kislev ● Parshat Vayishlach Dec 13-14, 2019 Dearest Members and Friends, FRIDAY, DECEMBER 13 One of William Shakespeare’s best-known quotes is: “Be not afraid of greatness – some are 4:26pm CANDLELIGHTING born great, some achieve greatness, and others have greatness thrust upon them.” 4:30pm MINCHA/KABBALAT SHABBAT Those who achieve greatness often defy advance prediction. Such a man was the late Rabbi SATURDAY, DECEMBER 14 Eleazar Menachem Man Shach, whose 18th yahrtzeit we commemorated last month. A 8:30am RABBI’S GEMARA SHIUR Lithuanian-born yeshiva-trained scholar lucky enough to emerge from Nazi-overrun Europe, 9:15am SHACHARIT in 1940 he settled in Palestine where he struggled to find income as a yeshiva teacher, despite his previous 3:45pm PRE MINCHA SHIUR experience running a significant yeshiva in Europe. He was eventually hired to teach at Ponevezh, a 4:20pm MINCHA remarkable institution created by the legendary Ponevezher Rav, Rabbi Yosef Shlomo Kahaneman. Rabbi 4:40pm SEUDAH SHLISHIT Shach proved very popular with students, although he was initially overshadowed by his colleague Rabbi 5:25pm MA’ARIV Shmuel Rozovsky, a masterful pedagogue whose clarity and scholarship made him the undisputed superstar 5:30pm SHABBAT ENDS Talmud lecturer at the yeshiva. In retrospect, Rabbi Shach was typical of many rabbis like him who had survived the Holocaust – qualified, competent, pious, a scholar, and deeply committed to the cause of reestablishing the world that had been Sun. -
צב | עב January Tevet | Sh’Vat Capricorn Saturn | Aquarius Saturn
צב | עב January Tevet | Sh’vat Capricorn Saturn | Aquarius Saturn Sunday Monday Tuesday Wednesday Thursday Friday Saturday 1 | 17th of Tevet* 2 | 18th of Tevet* New Year’s Day Parashat Vayechi Abraham Moshe Hillel Rabbi Tzvi Elimelech of Dinov Rabbi Salman Mutzfi Rabbi Huna bar Mar Zutra & Rabbi Rabbi Yaakov Krantz Mesharshya bar Pakod Rabbi Moshe Kalfon Ha-Cohen of Jerba 3 | 19th of Tevet * 4* | 20th of Tevet 5 | 21st of Tevet * 6 | 22nd of Tevet* 7 | 23rd of Tevet* 8 | 24th of Tevet* 9 | 25th of Tevet* Parashat Shemot Rabbi Menchachem Mendel Yosef Rabbi Moshe ben Maimon Rabbi Leib Mochiach of Polnoi Rabbi Hillel ben Naphtali Zevi Rabbi Shneur Zalman of Liadi Rabbi Yaakov Abuchatzeira Rabbi Yisrael Dov of Vilednik Rabbi Schulem Moshkovitz Rabbi Naphtali Cohen Miriam Mizrachi Rabbi Shmuel Bornsztain Rabbi Eliyahu Eliezer Dessler 10 | 26th of Tevet* 11 | 27th of Tevet* 12 | 28th of Tevet* 13* | 29th of Tevet 14* | 1st of Sh’vat 15* | 2nd of Sh’vat 16 | 3rd of Sh’vat* Rosh Chodesh Sh’vat Parashat Vaera Rabbeinu Avraham bar Dovid mi Rabbi Shimshon Raphael Hirsch HaRav Yitzhak Kaduri Rabbi Meshulam Zusha of Anipoli Posquires Rabbi Yehoshua Yehuda Leib Diskin Rabbi Menahem Mendel ben Rabbi Shlomo Leib Brevda Rabbi Eliyahu Moshe Panigel Abraham Krochmal Rabbi Aryeh Leib Malin 17* | 4th of Sh’vat 18 | 5th of Sh’vat* 19 | 6th of Sh’vat* 20 | 7th of Sh’vat* 21 | 8th of Sh’vat* 22 | 9th of Sh’vat* 23* | 10th of Sh’vat* Parashat Bo Rabbi Yisrael Abuchatzeirah Rabbi Yehudah Aryeh Leib Alter Rabbi Chaim Tzvi Teitelbaum Rabbi Nathan David Rabinowitz -
Sponsored by Mr. and Mrs. Jordan Schottenstein in Memory of His Parents Rabbi Tzvi Mordechai Ben Yehoshua Heschel Z’’L Esther Cheyenna Bas Mordechai Z’’L
SHEMOS 5781 VOLUME 20, ISSUE 17 PARSHA INSIGHTS Shifra’s true name is Yocheved, however she was called Shifra because she beautified the babies. Puah’s real name is Miriam, however she was called Puah because she cooed to the babies in It was on the way in the lodging, that Hashem encountered the manner that women soothe a crying baby. (Rashi) Moshe and sought to kill him. (4, 24) Yocheved and Miriam were prophets (Megilla 14a). If so, why Rav Yose taught: G-d forbid for a person to say that Moshe did did the Torah call them by their nicknames, which do not not care about Bris Milah. He was faced with a dilemma. Should describe their exalted spiritual level? he perform the bris before he went to Mitzrayim and take the Rav Shmuel Rozovsky zt’l answered that neither a high spiritual child with him and expose him to danger during the first three level nor a high position in society is grounds for a woman to days after the bris? Or should he perform the bris and delay the receive praise and accolades. The true barometer for extolling a mission Hashem had commanded him to complete for three woman’s virtues is if she takes care of her family properly. The names of Shifrah and Puah were written in the Torah to identify days? Nevertheless, he was held accountable because upon Yocheved and Miriam as women who fulfilled their primary task arriving at an inn he began making arrangements for his lodging, in life – taking care of their family - in the most honorable instead of performing the bris without delay. -
Darkei Hachizuk
בס"ד Darkei HaChizuk ארבעה צריכים חיזוק (ברכות לב:) - שיתחזק אדם בהם תמיד בכל כחו (רש"י) A Sichah from Maran HaGaon Rav Gershon Edelstein shlita Mishpatim 5777 246 35 Similarly, he wrote the Mishnah Brurah on Orach Chaim in The Sefarim of the Chafetz Chaim order that people should correctly keep the laws of Orach We just read about Klal Yisrael accepting the Torah in Chaim. The Chazon Ish is known to have said that people Parshas Yisro, and are starting to learn the laws of the Torah mistakenly think that the Mishnah Brurah just quotes other in Parshas Mishpatim. It therefore is appropriate for us to take Sefarim, when in fact he is deciding the Halachah. a closer look at some of the Gedolim in generations past, and The Ways to be Mezakeh Ha’Rabim analyze how they achieved their tremendous success in becoming great Torah scholars. Everyone can be someone who brings merit to the public in For example, let us analyze the life of the Chafetz Chaim. some form. Some do this by spreading or teaching Torah or The Chafetz Chaim traveled around collecting Haskamos for Mussar, and some do this by enabling others to perform the many Sefarim that he wrote. The Chazon Ish stated that all Chessed on a large scale. of the people who the Chafetz Chaim received Haskamos Besides for the merit that a person receives for enabling from, were not as great a scholar as he was. Collecting others to perform Mitzvos, he also receives personal Haskamos from these lesser Torah scholars was just one Siyata Dishmaya in that area of spirituality. -
פרשת וישב Parshas Vayeishev
Yeshiva University High School For Boys Volume 25, Issue 12 Marsha Stern Talmudical Academy Kislev 26, 5781 שמע קולנו ”יתגבר כארי לעמוד בבוקר לעבודת בוראו“ פרשת וישב Parshas Vayeishev Roller Coaster: Yosef In Vayeishev Ori Putterman ('14) Table Of contents: In honor of Shema Koleinu’s 25th anniversary, we are proud to present articles throughout the year from past Roller Coaster - Ori Putterman (’14) ………..…...…………..1 editors of the publication. This week’s Dvar Torah comes from Ori Putterman, who served as Editor-In-Chief of A Short Vort - Akiva Kra (’21)………..…………….................2 Shema Koleinu in the 2013-14 school year. Since gradu- ating MTA, Ori went on to learn in Yeshivat Har Etzion, before eventually joining the Israeli Defense Forces. He An Indirect Sale - Benny Cohen (’23)…………………………..2 is currently studying psychology and economics in He- brew University. Uncertain Righteousness– Meir Ness (’22)……..…………..3 Sefer Bereishis is a book filled with toldos, generations. Yosef’s Sale And the Ten Martyrs - Samuel Gorman From the toldos of the heaven and earth (2:4), to the tol- dos of Adam (5:1) and Noach (6:9), and including the (’21) …………………………………………………………………………...3 toldos of non-Jewish characters such as Yishmael (25:12) and Eisav (36:1), it is fair to characterize the en- Where Should We Place Our Faith– Yonatan Burns (’22) tire book as organized around this structure. The tenth ………….............................................................................4 and last toldos mentioned in Bereishis occurs in this week's parsha, when the possuk says "eileh toldos Yaa- kov: Yosef..." (37:2). The story of Yaakov's generations, Do Snitches Really Get Stiches?– Ezra Schechter (’22)..5 and the evident focus on Yosef from the start of the jour- ney, will take us all the way from this week's parsha until Yosef And Channukah - Moshe Lieberman (’24)………...5 the end of the sefer. -
Toronto Torah Beit Midrash Zichron Dov
בס“ד Toronto Torah Beit Midrash Zichron Dov Parshat Vayikra 6 Adar II , 5771/March 12, 2011 Vol.2 Num. 28 Korbanot: It’s The Thought That Counts R’ Mordechai Torczyner Feeling like an astronaut does not and practice? Sanhedrin 106b, rachmana liba ba’ey, mean I‘ve been to the moon, and One answer may emerge from the Hashem desires the heart. The goal of studying the laws of Lulav is not Rambam‘s discussion of why Hashem the korban is to bring us closer to Gd; halachically equal to picking up a decreed the existence of korbanot, at absent that goal, the korban itself is palm branch and waving it. When all. Rambam was troubled by meaningless. [Of course, this dealing with korbanot, though, it Yirmiyahu‘s declaration (7:22-23), ―For emphasis upon the heart does not seems that feeling = doing. on the day I removed your fathers from render the korban ritual meaningless; Vayyikra Rabbah (7:3) illustrates this Egypt, I did not speak to them and I viduy without a korban chatat is as point, saying, ―Since you involve did not command them regarding meaningless as a korban chatat yourselves in studying them, I burnt offerings and celebration without viduy. Nonetheless, the consider it as though you had actually sacrifices. Only this did I instruct them, thought is essential to the korban.] brought them.‖ This message is saying: Hear My voice and I will be We see evidence of the importance of reminiscent of Hosheia‘s surprising your G-d, and you will be My nation.‖ our feelings in the names that the statement, as explained in Yoma 86b, Yirmiyahu seems to say that Hashem Torah and our sages used to identify that reciting the pesukim of the does not desire korbanot - but the the korbanot themselves. -
Nosei B'ol Im Chaveiro
Table of Contents Section # Section Title Slide #’s 3 זצ״ל ,Dedication In loving memory of Rabbi Dr. Meir Fulda Introduction Chesed which flows from the source of the Jewish soul 5-6 I What is the meaning of being Nosei B’ol Im Chaveiro? 7-9 II Who are our models of a Nosei B’ol Im Chaveiro? 10-17 III What is the reason for the imperative to be Nosei B’ol Im Chaveiro? 18-22 IV Why is Nosei B’ol Im Chaveiro instrumental for Torah acquisition? 23-24 V How does Nesiah B’ol arouse Heavenly salvation for the Jewish people? 25-26 VI The virtue of Nosei B’ol Im Chaveiro is a key component of Tefilla 27-29 VII Forming the human connection: Using all our “senses” to be Nosei B’ol 30-33 VIII Additional strategies to be Nosei B’ol Im Chaveiro 34-35 IX Neutralizing the impediments to being Nosei B’ol Im Chaveiro 36 Summary Nosei B’ol Im Chaveiro: Definition, importance, and applications 37-38 Table Conclusion We are NOT powerless; Nesiah B’ol saves the day for our brethren in need! 39 Appendix A Being Nosei B’ol with Hashem’s pain and praying for relief of His pain 40-43 Appendix B One who is Nosei B’ol Im Chaveiro leads a life of Kiddush Hashem 44-46 Appendix C The Jewish nation’s responsibility to be Nosei B’ol with all mankind 47 Appendix D Stories of awesome Nesiah B’ol demonstrated by great Torah scholars 48-53 Footnotes Additional explanation and references, by section and slide numbers 54-64 לעלוי נשמת מורינו הרב מאיר בן החבר ר׳ יהודה, זללה״ה זצ״ל ,In loving memory of Rabbi Dr. -
Rabbi Zvi Yehuda and the Hazon Ish,Book Announcement
Response to Criticism Part 4; Rabbi Zvi Yehuda and the Hazon Ish Response to Criticism Part 4; Rabbi Zvi Yehuda and the Hazon Ish Marc B. Shapiro Continued from here. 1. In Limits,p. 14 n. 55, I write I should call attention to a significant philosophical and halakhic point which appears to have gone unnoticed. The Vilna Gaon (R. Elijah b. Solomon Zalman (1720-97) apparently believed that the First and Second Principles are the only true Principles in Judaism. According to him, one who believes in God’s existence and unity, despite his other sins, is regarded as a Jew in good standing and he is thus able to be included in a minyan (quorum for public prayer). None of the numerous discussions regarding whether a Sabbath violator maybe in included in a minyan seems to have taken note of the Gaon’s comment, which appears in his commentary on Tikunei Zohar, 42a. Grossman writes: Apparently, concludes Shapiro, since the Gaon cites only idolatry as invalidating prayer and does not cite the rest of the Thirteen Principles, he is disputing Rambam’s classification of the others as binding fundamentals. However, this source has no bearing on the Principles. The Gaon’s comment refers to counting one for a minyan and to having one’s prayer accepted by God. He is clearly not referring to the Principles, since [in his commentary to Tikunei Zohar] he includes in the metaphor of the scorpion the sin of consorting with gentile women, which is unrelated to any Principle. (p. 48) The first thing to note is that I never said that the Vilna Gaon disputed “the Rambam’s classification of the others [other Principles] as binding fundamentals.” Of course the Gaon held that people must believe that there is prophecy, that God gave the Torah, that there will be a Messiah, etc. -
Rosh Yeshiva of Ponevezh
Share the Ch ofetz Chaim's vision of a world built on Ahavas Yisrael ... Gedolim of our h'rne - members ofour Rabbinical Board - speak out on the Chafetz Chaim Heritage Foundation "J admire the work that the foundation is "The Chofetz Chaim Heritage Foundation "I think it's a tremendous z'chus and doing to promote Shmiras Haloshon. .\\'!if' . :. is the only major organization working accomplishffi€n! for the Chofetz Chaim They make many thousands of people · · exdusivelv on the kev mitzvos of Ahavas Heritage Foundation to have taken upon aware of the responsibility of proper S[Jl'€Ch Yisrael and Shmiras l!aloshon. It is a great itself the responsibility and mission to and thev do it ven·. ven: successful!\··: ichus to have a part in their work .. promote Shmiras Haloshon to our -HaRat• A1!r'aba111 Pa~11, z"tl -HaRar SIJ11111el Ka111e11etskr·. entire community': II Sblitr1 - Chairman • - 1Voi•on1insker Rebbe, Sbfita .. .And get some of the world's most important tapes FREE! Become a member of the Chofetz Chaim Heritage Foundation - the only organization devoted to removing what the Chofetz Chaim declared is the single biggest barrier to the Geulah. As a new member you will enjoy a package of special membership benefil5 including a gift of some of the most important chizuk tapes available today. More importantly, you'll be helping to fulfill the Chofetz Chaim's vision by supporting the strongest initiative ever for Shmiras Haloshon and Ahavas YisraeL !ff, CHOFETZ F~mily $360 $180 $100 $54 $36 • Dedication in daily .. Sponsor a • One da\' -
THE JEWISH BS ERV ER I I I
THE JEWISH BS ERV ER i I I THE JEWISH OBSERVER ;; pub lished monthly. except July and August, by the Agudath Israel of America, 5 Beekman Street, New York, N.Y. 10038. Second class in this issue postage paid at New York, N.Y. Subscription: $9.00 per year; two The Jew in His Community, based on an address by years, $17.50; three years, $25.00; outside of the United States, $9.00 Rabbi Shneur Kotler, w·o•?w ........... 3 per year. Single copy, $1.25. A Tribute to Rabbi Chaim Leib Shmulevitz, 7"l1T, Printed in the U.S.A. Eliyahu Meir Klugman ................ 9 Postscripts: Our Responsibility to the Baal Teshuva RABBI NISSON WOLPIN "Reach Out With Torah," based on an address Editor by Rabbi Simcha Wasserman, w•o•?w, .18 "Don't Turn Them Off" .19 Editorial Board "Or ls It Too Late?" ... .20 DR. ERNST L. BODENHEIMER -Chairman Machon Yerushalayim: Kole! Manpower at Work, RABBI NATHAN BULMAN David Grossman .................... 22 RABBI JOSEPH ELIAS JOSEPH FRIEDENSON Second Looks at the Jewish Scene RABBI MOSHE SHERER Women Rabbis for Conservatives? ........ 25 Criticizing the Conservatives - "Lashon Hora"? . 35 THE JEWISH OBSERVER does Preparing for Pesach, a photographic essay by not assume responsibility for the Arnold Cohen ................. .42 Kashrus of any product or service advertised in its pages. A Volunteer's Expression of Anger, a poem . 45 Letters to the Editor . .46 Copyright 1979 FEB., 1979 VOL. XIII, NO. 9 The photograph qf Aabbi Chaim Shmulevitz, 7"YT, in the January issue was taken from the collection of Yonoson Israel, Brooklyn, N.Y. -
Calabresi's and Maimonides's Tort Law Theories-A Comparative
Conversation Calabresi's and Maimonides's Tort Law Theories-A Comparative Analysis and a Preliminary Sketch of a Modern Model of Differential Pluralistic Tort Liability Based on the Two Theories Yuval Sinai* & Benjamin Shmueli** I. CALABRESI AND MAIMONIDES: IS IT POSSIBLE TO CONDUCT A DIALOGUE BETWEEN THE THEORIES? This Article's main argument is that the roots of contemporary utilitarian analysis can be traced back to Jewish law sources, and that Ph.D; L.L.B; Schusterman Visiting Professor of Law at Yale University, Judaic Studies and Middle East Programs, and a Senior Research Scholar in Law, at Yale Law School, 2013-14; Visiting Professor, McGill University, Canada (2007-08); Associate Professor of Civil Procedure and Jewish Law and Director of the Center for the Application of Jewish Law (ISMA), Netanya Academic College Law School; Adjunct Professor, Bar-Ilan University Law School, Israel. Ph.D. 2005, L.L.M. 1999, L.L.B. 1998, Bar-Ilan University; Senior Research Scholar in Law at Yale Law School, 2013-14; Visiting Professor, Duke Law School, 2006-08; Associate Professor of Tort and Jewish Law, and Director of the Center for Commercial Law, Bar-Ilan Law School, Israel. Our thanks to Ehud Guttel, Gideon Parchomovsky, Ariel Porat, Benny Porat, and Eyal Zamir for their valuable comments. The paper has been presented at the 17th International Conference of the Jewish Law Association, Yale Law School, 2012; the European Law & Economics Association Annual (EALE) Conference, Stockholm, 2012. We thank the Honorable Guido Calabresi for his comment at the Yale conference and for fascinating discussions. We also thank the Yale Journal of Law & the HumanitiesBoard, and William Zichawo in particular for his skillful editing.