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The 1901 Jewish Encyclopedia


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Philosophic Notion.

Term used in philosophy to express a characteristic of an object or notion which does not necessarily follow from its nature and is not essential to its concept, but is connected with the object as an unessential, seemingly, by chance or Accident. The opposite notion is that of the essential, that is, a necessarily contained characteristic, without which the object would lose its identity. That a human being is mortal or a biped is necessarily contained in the notion "human being," but to be white is only the chance or accidental characteristic of any particular human being, for negroes are also human beings.

Among the Arabic and Jewish philosophers the doctrine of accidents = or , also , assumes special importance, particularly as a proof of the existence of God (compare Munk, "Guide des Égarés," 1:385,398,424; Kaufmann, "Gesch. der Attributenlehre," p. 281). Descartes, Hobbes, and Locke substitute for the term "Accident," which had been universally used in the Middle Ages, the term "modus" (= temporary condition), and this change was adopted by Spinoza ("Ethics," part , definition 5). The logical relation is that of subject and predicate, the metaphysical relation that of substance and Accident ( in Arabic-Jewish philosophic phraseology). The relation of Accident, as a chance quality, to attribute, as a permanent characteristic of the substance ( ) has been clearly explained by Maimonides, "Moreh Nebukim," 2:19. Maimonides distinguishes between separable and inseparable accidents, and .

  • Maimonides, Moreh, 1:73, 2:19;
  • idem, Yesode ha-Torah, 4:8;
  • idem, Millot ha-Higgayon, § 9;
  • Schmiedel, in Monatsschrift, 13:186.

L. S.

—In Law:

In daily life, Accident means unforeseen harm that comes to persons or things, presumably through lack of care. When the contributor to an Accident is another than the person injured, or is the owner of the things destroyed or depreciated, there is room for litigation, which, in every system of jurisprudence, is governed by special laws.

The Torah treats of the law of negligence in Exodus 21:28-36 and 22:4,5, the leading cases being those of an ox goring a man or beast; an open, unprotected pit; fire spreading to a neighbor's property; also, to a certain extent, trespassing cattle. For the rules of Exodus 22:6-14, concerning the liability of a person lawfully possessed of another's goods for loss or destruction, see see BAILMENTS. In the language of the Mishnah the chief instances given in the Torah for a more broadly applicable law, such as those relating to the GORING OX or those relating to any animal that inflicts unusual harm, or to the open pit or any similar inanimate thing, are called ("fathers"); other instances derived from these are known as ("descendants"). The latter may be called "derivatives."

The Four "Fathers," or Leading Cases.

The Mishnah and the Tosefta treat the law of compensation for results of negligence in Baba Ḳamma, -, commented on in the Babylonian Talmud, 2-62b, and in the Jerusalem Talmud, 2-5c. Maimonides, in his "Yad ha-Ḥazaḳah," treats the subject under the heading "Nizḳe Mamon" (Damage to Property).

The "goring ox" with its derivatives is put aside, because full compensation for its acts can be demanded only when the master has been forewarned, and the treatise opens with the following four "fathers" for full compensation, under the technical names of "ox," "pit," "chewer," and "kindling." Here the "ox" means an animal allowed to trespass on a stranger's land and do injury with its foot; the "chewer," a like animal that does harm with its teeth. Both examples are derived from Exodus 22:4. The damage done may far surpass the gain to the owner of the animal. The "pit" refers to Exodus 21:33, the "kindling" to Exodus 22:5. It may be remarked that Abba Arika, the eminent Babylonian authority, understands the "ox" among the "fathers" to embrace both the foot and tooth, and regards the word here rendered "chewer" as standing for man; for when a man himself commits an injury he is always mulcted in full damages (B. Ḳ. 3b).

Derivative Cases.

Any tame animal permitted wilfully or carelessly to go on a neighbor's land, and which does mischief by knocking things over with its body, or by dragging them along by means of its hair, tail, harness, bridle, or yoke, or by the burden which it carries, or by rubbing against a post or wall, is a derivative of the "ox," while an animal breaking down a post or wall by rubbing against it, or defiling grain or grass with its excrements, is a derivative of the "chewer." But striking with the body, or malignantly biting, or crouching on something, or kicking, is treated on the same principle as "goring." Chickens, dogs, cats, and even hogs are named among the animals for which the owner is made liable. Derivatives of the "pit" are a stone, knife, burden, or a mound; in short, anything over which one can stumble or from which one can receive injury if left in (public domain); that is, on the highway or on common lands. Derivatives of the "kindling" are articles which the owner has left on his roof, whence the wind carries them off to the injury of person or property. For whatever damage arises indirectly, the ultimate author is liable to the extent of only half compensation. Thus, when the foot, in striking the ground, kicks up pebbles, and these cause an injury, or when the animal upsets any implements, which in turn fall upon other implements and break them, the damage is considered remote, and only half compensation is given. These remote damages, when caused by animals, are known generally as the "case of pebbles."

Placing the Liability.

Herein the Jewish law differs very widely from the English common law, as laid down in the leading case of Scott versus Shepherd (the "Squib case"), well known to lawyers. The four "fathers" and their derivatives have this in common: The entire estate of the owner of the guilty beast or thing is liable for the full damage, to be paid from "the best"; for Scripture (Exodus 22:4) says, "Of the best of his own field and of the best of his own vineyard shall he make restitution." For the explanation of "the best" APPRAISEMENT. The ground of liability is based upon the natural tendency of animals to do harm, and the owner is bound to watch them. The general principle is thus stated: "I am considered to have caused the injury done by anything I am bound to watch; and if I have actually caused the injury in part, I am bound to make good the whole injury" (B. Ḳ. 1. 2). This latter point is thus illustrated: "If a pit be nine palms in depth and I dig it down a tenth palm, so as to make it deep enough to kill a beast that falls into it, I am as liable as if I had dug the whole pit" (B. Ḳ. 10a). While in the case of the "ox" and the "chewer" the owner is bound only for damage done on the land of the injured party, the "pit" is supposed to be on the public domain; the fire may start from that, or on the guilty party's own ground, presumably from the latter, and he is liable. The "ox" and the "chewer" make their owner liable for harm done to man or beast, to buildings or goods; the "pit," according to the words of Scripture, should "an ox or ass fall therein" (Exodus 21:33), only for the killing or maiming of animals—as ox or ass is supposed to exclude human beings and goods (, literally "implements"); though R. Judah, one of the older sages, who is mentioned as dissenting on this point of law, held that satisfaction must be made for goods.

Contingent Results.

The law, however, remains such that there is no liability for loss or destruction of goods, other than the falling animal, by the "pit" or by any of its derivatives, even when man and goods or beast and goods fall in together. But while no redress is given for persons that fall into a pit and die, there is redress for injuries not fatal (B. Ḳ. 28b). For the death of a beast, only the owner of the pit is liable, when it happens at night or when the beast, by reason of youth, blindness, or deafness, is not able to take care of itself; but it is otherwise when the beast is injured, but not killed. The digger of a pit on his own ground may become liable if he open the property to public use and an injury ensue from the pit. On the other hand, where there are public places in which it is customary to deposit certain articles—for instance, jars of wine around a wine-press—the owner of these utensils is not liable if man or beast stumble over them. Again, whoever throws water from his house, or cellar, or yard, into the highway, is liable for any damage to man or beast, from sliding and falling, but not for damage to goods; for such water on the highway is legally considered in the nature of a "pit." As to derivatives of the "pit," the Mishnah teaches: If a jar be left upon the highway, and a traveler stumble over it and break it, the traveler is not liable for the loss, but, on the contrary, the owner of the jar is liable if the traveler is hurt by the water or the potsherds (Mishnah B. Ḳ. 3:1). A distinction is attempted by some who say that when the article thus left on the highway or public domain has been abandoned by its owner he is no longer responsible for the injuries caused by it; but this is disallowed by most authorities (Maimonides, "Nizḳe Mamon," 13:2).

If any one start a fire on the field of another, he is of course liable for the result; if he start it on his own ground, and there is either a stone fence of sufficient height to check the flames, or a stream, or a public road (sixteen cubits in width), between the place and a neighbor's ground, the crossing over of the flames or the sparks is regarded as the result of unusual forces, against which human foresight can not avail. But in case of a fire that passes from point to point, whoever starts it is liable for whatever damage it may do at any distance. The starter of a fire is responsible for injuries to anything except things hidden, as in the Scriptures (Exodus 22:5) mention is made only of "stacks of corn, or the standing corn, or the field." Goods hidden in a field or among thehayricks need not be paid for by one that starts a fire; but such a one is liable for the furniture in a house and, it would seem, for the goods in a shop; for things of value are expected to be deposited in a house, but not in a field (Maimonides, c., 14:12).

Indirect Liability.

When a spark is emitted from a hammer and does damage the striker is liable. "When a camel laden with flax passes along the highway, and the flax, being pressed into the shop, catches fire from a lamp of the shopkeeper, and the house is burnt, the owner (ba'al) of the camel is liable" (B. Ḳ. 6:6). Here is shown the kindling of a fire treated as damage arising from the ordinary walk of an animal; for it is not the driver, but the owner, of a camel on whom the blame is laid. Maimonides declares him liable because the camel was too heavily laden. But when the shopkeeper leaves his lamp on the outside, he is liable to the owner of the flax. The above-mentioned passage of the Mishnah is remarkable for the closing words (which are, however, not good law): "R. Judah says, when it is the Ḥanukkah lamp, he is not liable," for this happens to be the only mention made of the Ḥanukkah lamp in the whole compilation known as the Mishnah.

Other cases are discussed in the Mishnah, such as the aggravation of "pit" and "fire," when occurring on the ground of the injured party or on the common ground of injurer and injured.

From the Scriptural phrase "the ox of his neighbor" the principle is drawn that damages for negligence can not be exacted where the thing injured belongs to a heathen, or is consecrated property, or res nullius, such as the estate of a convert dying without issue. The term mu'ad ("witnessed against" or "forewarned") is derived from the case of the goring ox in Scripture (Exodus 21:29), extended by the Mishnah to those agents who, without any proof of former viciousness, are held responsible for any damage that they inflict. Thus, as already stated, a human being is mu'ad whether acting wilfully or unwittingly, whether awake or asleep; if he blind his neighbor's eye or break his implements, he must pay the full damage. But the word nezeḳ for damage must be here taken in the narrow sense of depreciation; for the one that unwittingly or unwillingly inflicts a personal injury is liable for the lasting injury only, not for the four other causes of damage—pain, loss of time, cost of cure, and disgrace—for which the wilful assailant must answer (Maimonides, c., 43:1-5; "Ḥobel," 1:11 et seq.).

Such animals as a wolf, a lion, a bear, a panther, a leopard, and a serpent are held to be always vicious, and their owner is consequently "forewarned"; the exception sought to be made in favor of such animals, when tamed, is disallowed by the majority (B. Ḳ. 1:4).

Value of a Human Life.

With the exception of the ransom which the owner of the "forewarned" ox has to pay in certain cases for a man or woman killed by the beast—this being demanded by the very words of Scripture—no conpensation is ever paid for causing the death of a human being; for the idea of atoning by money for the loss of human life was abhorrent to the Hebrew mind. This rule was applied even when a slave was killed by an Accident; wherein the Talmud differs from the Roman law, which says only liber homo nullius est pretii (a freeman can have no valuation put upon him). It is only since Lord Campbell's Act, in 1846 (9 and 10 Vic. c. 93), that the English common law has allowed compensation for the death of persons by negligence. The master of a slave is not liable for the torts done by him, even to the extent of giving him up in compensation for them; nor is the husband bound for the torts of his wife. But should the slave be manumitted, or the woman be divorced or become a widow, he or she may be sued for the damage done during slavery or coverture. Deaf-mutes, insane persons, and minors (boys not over thirteen) are not liable for their own torts, while other persons are liable to them or to their representatives (Mishnah B. Ḳ. 8:4).

Legal Status of Agent.

The maxim of the Roman and the English law, qui facit per alium facit per se (he who acts through another acts of himself), has its equivalent in the phrase of the Talmud, "A man's agent [literally, "messenger"] is like himself"; and this should lead to the master's liability for the acts of his agents and servants (not slaves), which in modern law is the most important point in the law of negligence.

On the contrary, the Mishnah says, when one delivers his cattle to an independent herdsman, the liability devolves on the latter. But where the offending beast has been entrusted to a person unfit to care for it, such as a deaf-mute, an insane person, or a minor, the owner is liable for all mishaps, as if he had retained personal control (B.Ḳ. 6:2). While full damages are held a personal debt of the owner, half damages are to be paid only "from the body" of the offending animal. The law in Exodus says: "They shall sell the live ox, and divide the money of it; and the dead ox also they shall divide" (Exodus 21:35). The old sages showed how this law, when literally enforced, might often work hardship, as when a worthless steer or he-goat should kill a valuable cow, worth more as a carcass than her living slayer; hence they deduced their own rule. The owner in such cases pays half the damage, but only as far as the animal causing the injury will satisfy it. This corresponds to pauperies of Roman law, by which, however, slaves as well as animals can be surrendered in satisfaction for any harm done by them; and it finds an analogue in modern maritime law, in which the liability of the ship-owner is in most cases narrowed down to what can be realized upon the ship. The rule that half damages are always paid "from the body" only, has one exception, known as that of "the pebbles" and referred to above.

Full damages are deemed to be of the nature of a debt, and may therefore be adjudged upon the wrongdoer's admission; half damages are regarded in the light of a penalty, and can only be adjudged on the testimony of witnesses, as in prosecutions for crime. But all appraisement of either full or half damages must be made by a court of experts; that is, on the judgment of ordained judges, not of private men chosen by the parties. Hence, when all semblance of ordination had come to an end the Jewish rabbis could no longer adjudge these damage cases except by way of arbitration, conciliation, and religious advice; consequently the later practical codes, like the "Shulḥan 'Aruk," are silent on the whole subject.

For the rules by which a tame animal becomes "forewarned," together with the liability of its owner for the death of human beings, see GORING OX.

L. N. D.

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Bibliography Information
Singer, Isidore, Ph.D, Projector and Managing Editor. Entry for 'Accident'. 1901 The Jewish Encyclopedia. 1901.

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