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The Challenge of Wealth

Parshas Mishpatim

By Dr. Meir Tamari

Mishpatim covers the whole gamut of business relationships and the widest spectrum of economic transactions. They relate not only to economic and material issues but have important spiritual and religious perspectives.

“These are the social laws that you shall put before them; before them and not before the nations of the world” (Talmud, Gittin 88b, based on Exodus, 21:1).Menachem Mendel of Kotsk asked, “Do only we have such ordinances? After all, every people and every nation have social laws. Only with us these laws are a way to worship G-d, “came the reply.

“Moses said to Israel, ‘G-d gave you the Torah, if you do not keep the dinim, He will take back the Torah’. Because He only gave the Torah in order that you keep the dinim, as it is written ‘The power of the King is the Justice that He loves’ (Shmot Rabbah)………. this includes the laws of returning lost articles and the [business] actions of people” (Abarbanel, Introduction to Sefer Shmot).

The discussion of Mishpatim will continue over a number of weeks, each one devoted to a different major sector of business behavior.

DAMAGES NEZIKIN-TORTS.

The Talmudic sages said, “One who wishes to be a saintly person, a chasid, will observe the laws of nezikin, [tort law] scrupulously”(Bavah Kama, 30a). It is in this perspective that we must study the laws of damages presented in our sedrah. Although they are meant primarily for the judge to be able to compensate the injured party, for those of us who are not judges, they come to teach us what we may or may not do. This is exactly the manner in which we study the laws of kashrut or Shabbat. Not in order to know what the punishment is but in order to prevent transgressing them.

Since space, light, air, water etc.- our environmental resources- are all limited, the benefit that one person or group derives from some economic act, causes damage, material or otherwise, to the property or personal rights of others. The issues involved in the resultant conflicts between the individual and the community will be discussed in the book of Leviticus. Here we are dealing with the conflict between two individuals or groups of individuals, arising from the restraints placed upon us by the proximity in which we live. In a Jewish perspective it is quite irrelevant whether such damages are caused by economically motivated firms, by individuals gratifying some ecological or aesthetic need as in the case of landscaping or home improvement, or even by simple vandalism .Halakhic sources are adamant that we are responsible for preventing such damage caused by our own actions, or by those of our employees or by our property. Further, we are liable to pay for such damages. (Choshen Mishpat, sections 153-156)

Our sedrah presents 4 major categories of damages caused by property. 2 of them like the ox, represent damage caused by living creatures through grazing or through walking. and fire typifying damages caused or spread by natural forces (Exodus, 22: 4-5). Then, there is the pit, the example of damage caused by inanimate objects (Exodus 21 : 33-34). The ensuing discussion in the Talmud (Baba Kama, chapter 1, mishnah 1), held a person responsible for the damage caused, even in areas that are public property; the pit dug in the public thoroughfare or the vehicle parked there. So too we would be responsible for damage from objects propelled by natural forces, if we set them in motion. In the Mishnah, these are sparks from an anvil or chips from felling trees. In our own days, they are also pollution of water and air through industrial wastes.

Not only is the obligation to pay for the damage clear, but so is the obligation to prevent it. At the outset, a person may not destroy or damage even their private property, since we are only guardians of our economic assets, not possessed of absolute ownership of them. “He who tears his clothes, breaks his utensils or scatters his money in anger, should be in your eyes as one who serves idols”. (Shabbat,105b). The biblical paradigm of this baal taschit, are the laws against destroying trees bearing edible fruit, in time of war for permitted military purposes. (Deut. 20:19). Even though this refers to trees belonging to an enemy, we are forbidden such destruction, since we are destroying part of the creation of the Lord, who gives humanity its sustenance. The rabbis extended this injunction to include all useful items, so that the waste through inefficient use of fuel, in our day, would be considered baal taschit.

We are obligated to take all the reasonable steps to prevent damages to others. It is important to distinguish this moral obligation from the obligation to compensate for damage caused. There are cases where it is cheaper to compensate the injured parties than to relocate or to make technological changes that would prevent the damage. Sometimes only few of the injured parties know their legal rights or are able to enforce them. Often the wheels of justice grind slowly, even when they do. Nevertheless we have the obligation to prevent our property or our selves from causing damage. “The owners of a field must warn the owner of an animal that has entered fields or vineyards in search of food, irrespective of whether as yet any damage has been done. If the animal’s owner does not prevent future entry, the owners of the fields may slaughter it according to the laws of shechita and the carcass belongs to its owner. This is because a person may not cause damage on the assumption that compensation will be paid, since it is forbidden to cause damage” ( Mishneh Torah, Hilkhot Nizkei Mamon, chapter5, halakhah 1 ) .

This idea of preventing damage goes beyond that caused by us or our property. It includes actions geared to saving people from financial loss or physical harm caused by others or even by natural causes. Basically this is flows from the mitzvah of returning lost articles (Exodus, 23:4) [preventing their loss being seen as such], and from “You shall not stand on your brother’s blood (Lev. 19:16)- damim being literally blood but also money. So, one who has knowledge that can assist another in a court is obligated to come forward and bear witness. If we see a river or other natural force threatening the property of another, we are obligated to prevent it; the beneficiary is also liable to compensate us for any losses incurred in such actions. The same idea has been applied hal;akhically, to informing the object of hostile plans or conspiracies in the market against them (Choshen Mishpat, section426).

Naturally, the prevention of damages as often as not entail additional costs, so that it is necessary to see what limits if any are imposed on this obligation. Within their own property, each person is permitted to make normal and legitimate use of their property and assets. This does not mean ignoring the question of other people’s welfare. Rather we need to balance our right to use our property against the welfare of others, both as individuals and communally. Where the damage is direct, we are obligated to prevent it and compensate for it. However, the property rights of the injured party and the injunction against causing damage may be limited in those cases where the complaint borders on selfishness or rests on an unwillingness to help our neighbors. The principle of one has a benefit and the other suffers no loss is a characteristic of Jewish behavior in this area as well. “ A person should not pour out well water [ that is legally theirs] as long as there are others who need it” ( Yevamot, 11b ).By invoking my property right to the water, I am preventing somebody from enjoying a benefit. See how Rivkah is careful not to waste the water she had drawn even though this involved physical hardship of having to carry it back into the trough. “Where the damage is indirect and the injured party can easily prevent it or enjoy the same benefit simply by relocating, while the other party suffers great loss or cannot conduct normal every day activities elsewhere on his property, we obligate the injured party as a chesed” (Teshuvot HaRosh, section 108, subsection 10).

However, beyond any considerations of chesed or the dictum, ‘one has a benefit and the other suffers no loss’, there is the concept of reasonable risk that legally also limits prevention of damages. Since all living and all actions entail a risk of suffering damages, halakha freed us from having to prevent those things that do not affect average people in their normal activities yet may sometimes affect some people; costs of preventing anything ever happening to anybody would be prohibitive. So the fence that has to be erected to prevent anyone falling off a roof is only to be of a height or strength that could prevent a normal person from falling over simply by leaning on it. So too the gates etc that prevent animals from damaging others property are such as can withstand normal weather conditions. A worker who fell out of a tree from which people seldom fall, is not compensated by his employer, nor is the employer liable for wages lost through a worker’s illness , nor for the medical costs during the period of the contract ( Mishnah, Baba Bathra, chapter 2, mishnayot 8 -9. See Choshen Mishpat section 155, subsections 22-23, based on them).

Rabbinic bans on smoking, buying and selling or advertising cigarettes, were only introduced when evidence was produced that the danger of cancer is a real and constant one, rather than something that only happened randomly or marginally.


Copyright © 2002 by Rabbi Meir Tamari and Project Genesis, Inc.

Dr. Tamari is a renowned economist, Jewish scholar, and founder of the Center For Business Ethics (www.besr.org) in Jerusalem.


 






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