the Week of Proper 26 / Ordinary 31
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Bible Encyclopedias
Tort
The 1901 Jewish Encyclopedia
or Any wrongful act, neglect, or default whereby legal damage is caused to the person, property, or reputation of another. Liability arises either from contract or from tort. Direct and wilful tort is see see TRESPASS. Trespass on the person is ASSAULT AND BATTERY. Other torts arise from lack of skill or care (ACCIDENT; BAILMENTS [sometimes deemed liabilities from contract]; FAULT; FRAUD AND MISTAKE; GORING OX). Among the torts not elsewhere treated are:
Mesne Profits:
In the Mishnah and Talmud.
The income derived from land unlawfully held by the possessor, for which he is answerable to the true owner when the latter recovers the land from him by the judgment of a court. The Talmud speaks of the possessor of land without right as the "robber of the land" (in English law, "disseizor"); and he, or even a third person who takes fruits or branches from land thus withheld from the true owner, is considered as morally guilty of robbery (see the prohibition of an Israelite using, in the ritual thyrsus on the Feast of Booths, a palm-branch or citron taken from land held by a disseizor [Suk. 4:1,2]). The liability to pay mesne profits is implied and rather distantly indicated in the Mishnah (Giṭ. 5:2). Assuming that he who sells land with warranty is liable not only for the price of the land which he receives, but also for the mesne profits which the purchaser will have to pay after eviction to the true owner, it is here taught that from motives of public policy the warranty inserted in the deed of sale, though in the nature of a bond, is to be levied, as far as it secures the purchaser against this liability, only upon "free property," not on "subjected property," e., on lands which in the meanwhile have been given away, sold, or encumbered (for the distinction DEED). The Gemara (B. M. 14a, b) discusses this matter fully in the light of the warranty, the liability of the unlawful possessor being taken for granted (see Maimonides, "Yad," Gezelah, ch. ).
Depasturing:
A liability for full damages is imposed by Exodus 22:4 (Hebr.). "If a man pastures on field or vineyard and sends his cattle to pasture in the field of another, he shall make it good with the best of his field and the best of his vineyard." When he pastures thus purposely, it is really a trespass; but the liability for "foot or tooth" is often as full when beasts go of themselves into the domain of another. Accidental injuries of this kind have been referred to under see ACCIDENT. But when a beast eats the neighbor's produce, is the owner liable for the harm done, or only for his profit by its eating? In the case put in Scripture he is of course bound for the former. Other cases are thus put byMaimonides ("Yad," Nizḳe Mamon, 3:6-12), who draws from B. Ḳ. 14-27 passim:
Wilful and Accidental.
When, from necessity, a beast eats something not its usual food, e.g., when an ass eats vetches or fish, the owner pays full damage, if the occurrence took place on the grounds of the injured party; but if on the highway, he pays only the amount which he has profited. Where a beast of prey enters the grounds of the injured party and tears or devours a domestic animal, the owner of the beast is liable for full damage, because it is its nature to act in the manner as it did: but if a dog should trespass and eat lambs or a cat eat grown hens, only half damage is due; for this is unusual. When an ass, finding bread in a basket, eats the bread and breaks the basket, the owner pays full damage for both. Where a beast, whether walking or standing, eats grass from the middle of a square, the owner pays what he profits: where it eats from the side he pays full damage. For what it eats out of the door of a shop, its owner is required to pay the equivalent of what he has profited thereby; from the interior of the shop, full damage. If, walking along the road, a beast eats off the back of another beast, only the saving in fodder is paid for; if it jumps out of its place, full damage is due. If one's beast glides or stumbles into another's garden and eats, etc., the owner owes only for what he profits, even if the beast goes from bed to bed, or stays in the garden all day; but if it walks into the garden in the regular way, there is liability for full damage. So, also, if it is pushed into the garden by a companion; for the owner should lead his herd in single file.
Unintentional Injury:
Though "a man is always forewarned," that is, liable for his actions, asleep or awake, intentional or unintentional (ASSAULT AND BATTERY, and authorities there cited), there is a broad exception to the rule; viz., when the mischief is done on the ground of the injuring party. For what a man does within his own domain, he is liable in damages only if it was done wilfully; but he is not liable if done either unconsciously or under compulsion. Where a man climbs a ladder, and a rung falls out under him and strikes another, he is liable if the rung was not strong enough or not well set; but if it was strong and well set, the harm done is regarded as providential, and he goes clear, even if it happened within the domain of the injured party; while on his own ground he would go clear in either case ("Yad," Ḥobel, 4:3,4, based on B. Ḳ. 28).
Betrayal:
Informers.
The man of violence ("annas," generally denoting an arbitrary or cruel official of the Gentile kingdom) is often mentioned in the Talmud and the codes. The most odious among torts was that of betraying the person or property of a fellow Israelite into the hands of the annas (see B. Ḳ. 5a, 114a; "Yad," Ḥobel,; Shulḥan 'Aruḳ, Ḥoshen Mishpaṭ, 328). In the 'Aruk it is put thus: "He who [by informing] delivers up property into the hands of an annas, whether Gentile or Jew, is bound to make good, from the best part of his estate, whatever the annas has taken, though he has not handled the thing at all, but has only shown the way; and if he dies, the damage done is levied from his estate in the hands of his heirs." The informer is excused if he has given information under bodily duress; but if he has handled the property himself, he is liable even then; for a man has no right to save himself at the cost of another. Further on, a religious sanction is given to this civil liability: "He who delivers up an Israelite, either in his body or in his property, to the Gentile has no share in the world to come." And on the strength of a case reported in B. B. 116a it is also said that it is not only permissible but meritorious to kill an informer in order to put a stop to his villainous trade.
Slander and Insult:
Elder "Put to Shame."
It has been shown under ASSAULT AND BATTERY that the insult or humiliation incidental to an assault is to be paid for separately; but in the case of an insult when there is no assault, even when one spits at another and does not reach his body but only his garment, there is no ground for recovery (B. Ḳ. 91a). And in the same connection a Palestinian amora is quoted: "The tradition goes [
], 'He who shames another by words is free from everything.'" But the Jerusalem Talmud (B. Ḳ. 6c) makes an exception in favor of the "elder," meaning a rabbi. Thus: "He who puts an elder to shame pays him the price of his shame. One Meshullam affronted R. Judah ben Ḥanina: the matter came before R. Simeon ben Laḳish; and he fined Meshullam a litra of gold." This precedent was carried into the Halakah; and all the Geonim followed it. They applied it to every scholar (
), and thus the rule appears in the code of Maimonides ("Yad," Ḥobel, 3:5), where the penalty is put at 35 denarii of gold (the weight of 8 8/4 shekels of gold); but he adds that in Spain many of the scholars waive their privilege. While others than scholars have no civil remedy for insult or slander, the act of "blanching a man's face in public" or that of "attaching a nickname to one's neighbor" is, as has been seen in ONA'AH, among the unpardonable sins punished in the future world. It is also found (Ket. 46a) that the sin of "bringing out an evil report" (slander) is fully recognized, on the strength of the text "Thou shalt not go up and down as a tale-bearer among the people" (Leviticus 19:16); but there is no civil remedy for the wrong done.
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Singer, Isidore, Ph.D, Projector and Managing Editor. Entry for 'Tort'. 1901 The Jewish Encyclopedia. https://www.studylight.org/encyclopedias/eng/tje/t/tort.html. 1901.
