J3. Injury & Damages. [Make a Comment]
We are not to injure or cause damages but, should we do so, we must make restitution and pay penalties prescribed by law.
This precept is derived from His Word (blessed be He):
Key Scriptures
INJURY TO COMBATANTS & BYSTANDERS
Exodus 21:18-19
(Maimonides RP236; Chinuch C49)
If two people fight, and one hits the other with a stone or with his fist,
and the injured party doesn't die but is confined to his bed; then, if
he recovers enough to be able to walk around outside, even if with a cane,
the attacker will be free of liability, except to compensate him for his
loss of time and take responsibility for his care until his recovery is
complete.
Exodus 21:20-21
If a person beats his male or female slave with a stick so severely that he
dies, he is to be punished; except that if the slave lives for a day or two,
he is not to be punished, since the slave is his property.
Exodus 21:22-25
If people are fighting with each other and happen to hurt a pregnant woman
so badly that her unborn child dies, then, even if no other harm follows, he
must be fined. He must pay the amount set by the woman's husband and
confirmed by judges. But if any harm follows, then you are to give life for
life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for
burn, wound for wound and bruise for bruise.
Exodus 21:26-27
If a person hits his male or female slave's eye and destroys it, he
must let him go free in compensation for his eye. If he knocks out his male
or female slave's tooth, he must let him go free in compensation for
his tooth.
Leviticus 24:19-20
(Maimonides RP236; Chinuch C49)
If someone injures his neighbor, what he did is to be done to him - break
for break, eye for eye, tooth for tooth - whatever injury he has caused the
other person is to be rendered to him in return.
INJURY CAUSED BY AN OX
Exodus 21:28-32
(Maimonides RP237; Chinuch C51)
If an ox gores a man or a woman to death, the ox is to be stoned and its
flesh not eaten, but the owner of the ox will have no further liability.
However, if the ox was in the habit of goring in the past, and the owner was
warned but did not confine it, so that it ended up killing a man or a woman;
then the ox is to be stoned, and its owner too is to be put to death.
However, a ransom may be imposed on him; and the death penalty will be
commuted if he pays the amount imposed. If the ox gores a son or daughter,
the same rule applies. If the ox gores a male or female slave, its owner
must give their master twelve ounces of silver; and the ox is to be stoned
to death.
Exodus 21:35-36
(Maimonides RP237; Chinuch C51)
If one person's ox hurts another's, so that it dies, they are to
sell the live ox and divide the revenue from the sale; and they are also to
divide the dead animal. But if it is known that the ox was in the habit of
goring in the past, and the owner did not confine it; he must pay ox for ox,
but the dead animal will be his.
INJURY CAUSED BY AN OPEN PIT
Exodus 21:33-34
(Maimonides RP238; Chinuch C53)
If someone removes the cover from a cistern or digs one and fails to cover
it, and an ox or donkey falls in, the owner of the cistern must make good
the loss by compensating the animal's owner; but the dead animal will
be his.
DAMAGES CAUSED BY A GRAZING ANIMAL
Exodus 22:4(5)
(Maimonides RP240; Chinuch C55)
If a person causes a field or vineyard to be grazed over or lets his animal
loose to graze in someone else's field, he is to make restitution from
the best produce of his own field and vineyard.
DAMAGES CAUSED BY THEFT OR ROBBERY
Exodus 22:1-3(2-4)
If a thief caught in the act of breaking in is beaten to death, it is not
murder; unless it happens after sunrise, in which case it is murder. A thief
must make restitution; so if he has nothing, he himself is to be sold to
make good the loss from the theft. If what he stole is found alive in his
possession, he is to pay double, no matter whether it is an ox, a donkey or
a sheep.
Leviticus 25:21-24(6:2-5)
(Maimonides RN245; Chinuch C229)
If someone sins and acts perversely against ADONAI by dealing falsely with
his neighbor in regard to a deposit or security entrusted to him, by
stealing from him, by extorting him, or by dealing falsely in regard to a
lost object he has found, or by swearing to a lie- if a person commits any
of these sins, then, if he sinned and is guilty, he is to restore whatever
it was he stole or obtained by extortion, or whatever was deposited with
him, or the lost object which he found, or anything about which he has sworn
falsely. He is to restore it in full plus an additional one-fifth; he must
return it to the person who owns it, on the day when he presents his guilt
offering.
Leviticus 19:11
(Maimonides RN244; Meir MN34; Chinuch C224)
Do not steal from, defraud or lie to each other.
Leviticus 19:13
(Maimonides RN245; Meir MN35; Chinuch C229)
Do not oppress or rob your neighbor; specifically, you are not to keep back
the wages of a hired worker all night until morning.
DAMAGES CAUSED BY DELAYING THE PAYMENT OF WAGES
Leviticus 19:13
(Maimonides RN238; Meir MN38; Chinuch C230)
Do not oppress or rob your neighbor; specifically, you are not to keep back
the wages of a hired worker all night until morning.
Deuteronomy 24:14-15
(Maimonides RN238; Meir MN38; Chinuch C230))
You are not to exploit a hired worker who is poor and needy, whether one of
your brothers or a foreigner living in your land in your town. You are to
pay him his wages the day he earns them, before sunset; for he is poor and
looks forward to being paid. Otherwise he will cry out against you to
ADONAI, and it will be your sin.
DAMAGES CAUSED BY REFUSING TO PAY OUR DEBTS
Leviticus 19:13
(Maimonides RN247; Meir MN37; Chinuch C228)
Do not oppress or rob your neighbor; specifically, you are not to keep back
the wages of a hired worker all night until morning.
DAMAGES CAUSED BY REPUDIATING OUR DEBTS
Leviticus 5:21-24(6:2-5)
(Maimonides RN248; Chinuch C225)
If someone sins and acts perversely against ADONAI by dealing falsely with
his neighbor in regard to a deposit or security entrusted to him, by
stealing from him, by extorting him, or by dealing falsely in regard to a
lost object he has found, or by swearing to a lie - if a person commits any
of these sins, then, if he sinned and is guilty, he is to restore whatever
it was he stole or obtained by extortion, or whatever was deposited with
him, or the lost object which he found, or anything about which he has sworn
falsely. He is to restore it in full plus an additional one-fifth; he must
return it to the person who owns it, on the day when he presents his guilt
offering.
Leviticus 19:11
(Maimonides RN248; Meir MN36; Chinuch C225)
Do not steal from, defraud or lie to each other.
DAMAGES CAUSED BY SWEARING FALSELY IN REPUDIATING OUR DEBTS
Leviticus 5:21-24(6:2-5)
(Maimonides RN249; Chinuch C226)
If someone sins and acts perversely against ADONAI by dealing falsely with
his neighbor in regard to a deposit or security entrusted to him, by
stealing from him, by extorting him, or by dealing falsely in regard to a
lost object he has found, or by swearing to a lie - if a person commits any
of these sins, then, if he sinned and is guilty, he is to restore whatever
it was he stole or obtained by extortion, or whatever was deposited with
him, or the lost object which he found, or anything about which he has sworn
falsely. He is to restore it in full plus an additional one-fifth; he must
return it to the person who owns it, on the day when he presents his guilt
offering.
Leviticus 19:11-12
(Maimonides RN249; Meir MN30; Chinuch C226)
Do not steal from, defraud or lie to each other. Do not swear by my name
falsely, which would be profaning the name of your God; I am ADONAI.
DAMAGES CAUSED BY WRONGING ONE ANOTHER WITH WORDS
Leviticus 25:171
(Maimonides RN251; Meir MN48; Chinuch C338)
Thus you are not to take advantage of each other, but you are to fear your
God; for I am ADONAI your God.
Proverbs 11:9
With his mouth the hypocrite can ruin his neighbor, but by knowledge the
righteous are delivered.
Proverbs 16:28
A deceitful person stirs up strife, and a slanderer can separate even close
friends.
Proverbs 17:9
He who conceals an offense promotes love, but he who harps on it can
separate even close friends.
Proverbs 18:21
The tongue has power over life and death; those who indulge it must eat its
fruit.
Proverbs 26:28
A lying tongue hates its victims, and a flattering mouth causes ruin.
Ephesians 4:29
Let no harmful language come from your mouth, only good words that are
helpful in meeting the need, words that will benefit those who hear them.
DAMAGES CAUSED BY FIRE
Exodus 22:5(6)
(Maimonides RP241; Chinuch C56)
If a fire is started and spreads to thorns, so that stacked grain, standing
grain or a field is destroyed, the person who lit it must make restitution.
DAMAGES INVOLVING BAILMENTS
Exodus 22:6-15(7-15)
(Maimonides RP242; Chinuch C57)
If a person entrusts a neighbor with money or goods, and they are stolen
from the trustee's house, then, if the thief is found, he must pay
double. But if the thief is not found, then the trustee must state before
God that he did not take the person's goods himself. In every case of
dispute over ownership, whether of an ox, a donkey, a sheep, clothing, or
any missing property, where one person says, 'This is mine,' both
parties are to come before God; and the one whom God condemns must pay the
other one double. If a person trusts a neighbor to look after a donkey, ox,
sheep or any animal, and it dies, is injured or is driven away unseen, then
the neighbor's oath before ADONAI that he has not taken the goods will
settle the matter between them - the owner is to accept it without the
neighbor's making restitution. But if it was stolen from the neighbor,
he must make restitution to the owner. If it was torn to pieces by an
animal, the neighbor must bring it as evidence, and then he doesn't
need to make good the loss. If someone borrows something from his neighbor,
and it gets injured or dies with the owner not present, he must make
restitution. If the owner was present, he need not make good the loss. If
the owner hired it out, the loss is covered by the hiring fee.
Exodus 22:9-12(10-13)
(Maimonides RP243; Chinuch C59)
If a person trusts a neighbor to look after a donkey, ox, sheep or any
animal, and it dies, is injured or is driven away unseen, then the
neighbor's oath before ADONAI that he has not taken the goods will
settle the matter between them - the owner is to accept it without the
neighbor's making restitution. But if it was stolen from the neighbor,
he must make restitution to the owner. If it was torn to pieces by an
animal, the neighbor must bring it as evidence, and then he doesn't
need to make good the loss.
DAMAGES INVOLVING DISPUTED OWNERSHIP
Exodus 22:8(9)
(Maimonides RP246; Chinuch C58)
In every case of dispute over ownership, whether of an ox, a donkey, a
sheep, clothing, or any missing property, where one person says, 'This
is mine,' both parties are to come before God; and the one whom God
condemns must pay the other one double.
DAMAGES INVOLVING A BORROWER
Exodus 22:13-14(14-15)
(Maimonides RP244; Chinuch C60)
If someone borrows something from his neighbor, and it gets injured or dies
with the owner not present, he must make restitution. If the owner was
present, he need not make good the loss. If the owner hired it out, the loss
is covered by the hiring fee.
1. Referenced by classical commentators but off the subject of the mitzvah.
Commentary
"Damages" is that aspect of law that has to do with loss. If damage is to a person, we call it "injury". Damages that are actionable (recoverable from another) originate in either "tort" or "contract". A tort is a wrongful act (intentional or unintentional) that infringes the rights of another and leads to damages. An example of an intentional tort is assault, and of an unintentional tort is negligence that causes damages. A contract is an agreement between parties, and damages can result from a party either intentionally or unintentionally failing to fulfill his or her part of the agreement. An intentional bailment is usually a contract to place one's property in the custody and care of another. A bailment can, however, come about unintentionally, such as when one finds and takes temporary possession lost property.
Depending on the circumstance of what causes damage or injury, appropriate remedies can be restitution, paying compensatory money damages, paying punitive damages (in the case of an intentional or reckless tort or gross negligence), specific performance of a contract (a court order to perform a contract as agreed), etc. What we are speaking of here are infractions of civil law as distinguished from criminal law, but they sometimes overlap. An example of overlap is theft. Theft is a civil offense to the victim who incurs financial damage, and it is simultaneously a criminal offense to society at large because of damage to the peace of the community. Bringing a thief to justice can, therefore, involve making restitution to the person from whom he stole, paying a fine to society, and also possibly a jail sentence.
The Scriptures listed above each speak to circumstances and conduct that can and often do cause damages. The torts, contracts, and remedies illustrated by the Scriptures are mere examples of others that exist, but they serve to make the point. Some of them are geared more to the time of Moses than to today, but similarities to modern situations can easily be seen, which is why our contemporary laws have largely been derived from these ancient examples. In today's urban society I do not have an ox to be gored by my neighbor's ox, but I do have a car that could conceivably be gored by his car; it is the same principle.
In order for a civil court to have the capacity to adjudicate a claim for damages, it must have three kinds of jurisdiction - personal, territorial, and subject matter. An ecclesiastical court (a Jewish court is called a bet din) must have these as well, except that its territorial jurisdiction is considered the entire world. Civil courts get their subject matter jurisdiction from civil law (e.g. statutes, ordinances, case law, etc.) and ecclesiastical courts get their subject matter jurisdiction from the Bible. Personal jurisdiction is acquired in various ways. In the civil courts it is sometimes acquired by the defendant's domicile, sometimes to where the damages sued for occurred, and sometimes it is defined by statute. Personal jurisdiction in an ecclesiastical court is a debated matter. It should be over all believers in Yeshua if it is a church court, and over Jews (Messianic or not Messianic) if it is a bet din. Sometimes, personal jurisdiction is acquired by the defendant being a member of a congregation, denomination, network of congregations, or organization. Plaintiffs are automatically subject to the jurisdiction of whatever court they apply to for relief.
Classical Commentators
Maimonides, Meir, and HaChinuch limit their respective mitzvot to the specific torts and contracts referred to in the Torah; they do not discuss modern applications or adaptations.
NCLA: JMm JFm KMm KFm GMm GFm