The Institute for Dayanim And under the auspices of Beis Horaah in memory of Baruch and Bracha Gross Mishpatim 5777 348 Dear Reader, This week’s article discusses the issue of Torah tort law, and specifically an especially common field: damages resulting from Parashas Mishpatim car accidents. How are car damages defined under Torah law? opens with the words: Is there an obligation to fix a dent made in somebody else’s “And these are the car? Does the negligence or otherwise of the driver make any ordinances that you shall difference? How is the liability evaluated? These questions, and place before them.” more, are discussed in this week’s article. Noting the adjoining This week’s Q & A addresses the question of getting something letter vav of the word from a car on Shabbos or Yom Tov. ve’eleh (and these) Rashi explains: This adds to Car Accidents in Halacha the former ones: Just as Classification and Application the former ones [the Ten The detailed laws of Parashas Mishpatim focus, among other Commandments] were things, on Torah civil law. In the present article we will focus on given at Sinai, so these a question concerning tort damages that we received recently on were given at Sinai. the dinonline website. Although some [see the While driving his well-kept Mazda car, Reuven made a standard Sifsei Chachamim, citing stop for a red light. To his great dismay, Shimon, who was driving from Re’em] write that the car behind him, made his presence more than felt, and crashed this means that even the his car into Reuven’s vehicle from behind. ordinances of Mishpatim Thankfully, there were no injuries and, since Shimon was insured, were given with the Reuven’s expectation was that his insurance would take care of thunder and lightning the matter to his satisfaction. However, later that day Shimon of Mount Sinai, the Or called Reuven, protesting that the matter should not be turned Hachayim points out that over to the insurance companies which do not operate based on this is hardly implied by Torah law, but rather the damage should be dealt with based on the verses. Torah principles. Rather, it appears that Based on Torah principles, Shimon said that he had the right to repair the damage at a garage of his choice, rather than the official the connection of the Mazda garage that Reuven always went to. Moreover, he claimed ØØ that he was really exempt from paying damages because the car Mishpatim to Sinai was only “drifting” forwards (the car was automatic). The absence teaches us of their great of action on his part exempted him, according to Shimon, from importance in spite of the damages. fact that they were not How are car damages classified in Torah law? Does Jewish law handed over at the great recognize an obligation to pay for repairs, and how does this event of Sinai. Although translate into numbers? Does the possible negligence of Shimon they lacked the fanfare of figure into the question? the Ten Commandments, These questions, among others, are addressed below. even the ordinances are essential, an integral Classifying the Damage part of the “Sinaitic revelation.” The first question to investigate is the category of damages into which car damages fall. Torah law recognizes four categories of After the supernatural damages (Bava Kama 2a), namely shor (damages caused by a event of Sinai, we would person’s animals or property), bor (damages caused by a pit or expect the teaching that something comparable to a pit), hev’er or eish (damage by fire), followed it to involve and mav’eh or adam (damages caused by a person himself). great matters, perhaps Each category is governed by a different set of halachos, which are deep secrets of the detailed in the first six chapters of Bava Kama. world, or lofty matters of For car damages, the types of damages that seem to be relevant Divine wisdom. Instead, are adam (direct human damage) and eish (fire). the revelation of Sinai is continued by laws of The category of shor does not apply, because one of the primary pits and oxen, of slaves characteristics of an animal is that it is alive, and moves without external assistance. This does not seem true of a car, which is and damages, and so on. not alive and cannot move without the application of an external This anticlimax comes as force. The category of bor will not apply in this situation, since bor something of a surprise. refers to passive, rather than active damages. Is this not “small-talk” by comparison with Sinai? There are important halachic differences between adam and eish. Damages caused by fire are exempt from liability where the The answer of the verse damaged object is concealed (tamun). In addition, adam is liable is that it is not. On the even for damages that were beyond the damager’s control (Bava contrary, the only way Kama 26a; Choshen Mishpat 378:1) to appreciate and value the revelation of Sinai is Adam or Eish? by studying and applying The reason that a car should be classified as adam is because the the Mishpatim, the fine car is controlled by its driver, and is therefore comparable to a details of halachic practice stick wielded by a man. that govern our everyday Yet, there is a difference between a stick, whose entire force is the force given it by the hand that wields it (it is considered kocho, the power of the person wielding it; see Bava Kama 10b), and a car, in which all man does is push a pedal to cause combustion. The living. car’s force is not the man’s own power. If we wish to claim our The damage of a car can alternatively be compared to the damage part in the thunder and of a fire. Like a fire that is lit by human hand but spreads with the lightning of Sinai, in the wind (Bava Kama 3b), the car is a damaging force initiated by the transcendent revelation of human driver, which then proceeds to cause damage on its own. As Shimon claimed, a car in gear continues to move, even without Torah, we must invest our human input. energies in applying the Torah to the fine details On the other hand, the way of the car is constantly under the of everyday life. This, control of its driver (providing the driver is in the car) distinguishes indeed, is the greatness of it from a fire, whose way is to go forth and damage (Bava Kama Torah: Its ability to uplift 10a) uncontrollably. In addition, a fire requires the assistance of the wind to spread and cause damage, which is not true of a car our mundane activities (see Rashi, Bava Kama 6a). to a level of mitzvos, to raise our simple human The damage of a person’s arrows is compared to the damage of interaction to the level of fire (Bava Kama 22a, Choshen Mishpat 418:17). In a similar a Divine revelation. sense a car can be considered an arrow. This form of damage, however (an arrow), is considered an extension of the damager’s From Sinai, we thus own person, a case of adam rather than eish. proceed to “and these are The primary source for this question is a responsum of the Rosh the ordinances.” Although (101:5), who was asked to classify the damage of a horse being all nations have laws, and ridden by a rider. The Rosh rules that on account of his control though their laws might over the horse, it is considered as if the rider had damaged with be most effective, the his own person. Although the force of the horse is not his own, verse states nonetheless the damage is attributed to the rider. that aside from Israel The same is true of a car. We therefore derive that a driven nations “do not know car will have the stringencies of adam, meaning that there are mishpatim” (Tehillim no exemptions for damages perpetrated by drivers, and that the 147:20). They do not driver will be liable even for damages that were beyond the driver’s know them, for they were control (see below). not at Sinai. They do not know them, for they see Circumstances Completely Beyond Control them as means for social Does this mean that Shimon will always be liable for the damage? good, and not for Divine What if Reuven makes a sudden stop, leaving Shimon with no elevation. That level is chance of averting collision? And what will be the halacha if reserved for Israel. Shimon encountered an unavoidable oil spill, which caused him to lose control and skid into Reuven? Will he still be liable? As we “For they are our lives, will see, the answer to the two questions can in fact be different. and the longevity of our days.” The Ramban (Bava Metzia 82b) takes the principle of adam mu’ad le-olam (a person is always liable for his were basically out of the individual’s control, he direct damages) at face value, meaning that a bears no liability. Only in cases in which there is person bears liability for all damages he causes, at least partial negligence, or cases that are “close regardless of circumstances. Even if he causes to negligence,” is the damager liable. damage due to circumstances entirely beyond his There is a dispute whether the Rambam agrees control—even in the case of the oil spill—he is with Tosafos or the Ramban.