Class Notes - Class #12

Civil Law 1


Mitzvot #49 and 51 – 60 involve selected matters of civil law.  Here again the format our author uses does not facilitate clarity or easy organization of the content.  The author does an awkward job of discussing an enormously complex area of law.  He raises many questions that help show the complexities of these mitzvot but does not provide many answers or even basic principles.

We will skip around some to enable us to take the material in a more orderly fashion.  (We may occasionally cover content in this week’s discussion that appears in the reading for next week.  Sorry for the inconvenience.)

            First, there are several things these mitzvot have in common, and the author says them once or twice but does not keep repeating them.  These mitzvot are addressed to judges; they instruct the judge how to proceed in a given legal situation.  There are no punishments for breaking these mitzvot, since they are positive mitzvot. 

            Our author says that, as to the litigants, these mitzvot apply equally to men and women; the gender of a litigant should not influence the outcome of the case.  (Our author mentions in mitzvah #49 that sometimes damages awarded to a married woman end up accruing to her husband.  We will cover the financial relations between husbands and wives at a later point.)  Looking at the judges, the author says these mitzvot apply to men but not to women. The author says that these mitzvot do not apply to women because “nashim ainan danos,”  “women do not judge.”  He does not say women may not judge, only that they do not judge.  It seems to me he is hedging on the question of whether halachah would object to women judges in cases that permit non-ordained judges.  But we may be reading too much into this phrase to interpret it as a sociological statement rather than a halachic statement.

            The shoresh of these mitzvot recalls the notion of God wanting an orderly society.  Without a judicial system to settle disputes, people would resort to violence and society would break down. 


These mitzvot cover several topics:


Courts and their jurisdiction;

What constitutes sufficient proof for a party to prevail;

The specific causes of action mentioned;

What damages are recoverable.


Courts and Their Jurisdiction

            In several of these mitzvot our author mentions what type of court can decide these cases.  Rather than covering this piecemeal within each mitzvah/essay, let us look systematically at the court system in theory and as it developed historically.  (One source for this systematic presentation is Quint and Hecht, Jewish Jurisprudence Volume 1, Harwood Academic Publishers 1980.  My presentation is only a general schematic; the question of courts and their jurisdictions is actually much more complicated.)

            In the theory of the halachah, the court system functioned throughout Israel.  There were three levels of courts: 

  1. Each city and town had at least one beit din of three judges who handled routine cases:  commercial disputes, personal injury and property cases, valuations and appraisals, issues of marital law, violations punishable by malkos, etc.  This court required ordained judges except for selected commercial cases, which could be decided by non-ordained judges. 
  2. The middle level courts consisted of 23 ordained judges.  There was one such court in each large town, one for each tribe, and two in Jerusalem. These middle level courts heard capital cases.  These courts also served as a resource when a local beit din faced a question it could not answer.  If the middle level court also did not know the answer to the question, the members of the two courts would go together to the Great Sanhedrin seeking an answer.
  3. The Great Sanhedrin consisted of 71 ordained judges.  It met in the Chamber of Hewn Stone, part of the Temple complex. It had many responsibilities, and this list only gives examples.  From a historical perspective, the most important job of the Great Sanhedrin was to establish the halachah in new cases or in cases where the halachah was in dispute. The Great Sanhedrin answered questions brought to it by lower courts when the lower courts were unable to answer the question presented.  It also decided cases of national importance, such as cases where a majority of a tribe was accused of idol worship, cases where a national figure like the High Priest was accused, and cases of boundary disputes between tribes.  It dealt with important national decisions, such as whether the nation should pursue a voluntary war. It established and appointed staff of the lower courts.


This system does not make arrangements to serve the needs of Jewish communities outside of Israel.  In theory, ordained judges could appoint agents who could then serve as judges outside of Israel.  (See mitzvah #49.)  These non-ordained judges were permitted to hear cases that occurred frequently and involved loss of money. 

The functions of the Great Sanhedrin eventually lapsed.  In fact, the Sanhedrin stopped meeting in the Temple complex and stopped taking formal votes defining halachah several decades before the destruction of the Temple in 70 C.E. 

Finally, ordination lapsed entirely in the Roman period.  If there were to be any Jewish courts, they had to depend on non-ordained judges.  Non-ordained judges may award compensatory damages, but not fines that go beyond compensation.  (See mitzvah #54.)  Non-ordained judges did not have the power to directly enforce their decisions as ordained judges did.  In mitzvah #51, the author points out that the tortfeasor has a moral responsibility to pay what is owed even if a court’s decision cannot be enforced.  Our author, in mitzvah #49, cites the Rif for a solution to this problem.  The court could decide what the defendant owed the plaintiff, and then put the defendant into herem, excommunication, until the defendant paid the plaintiff.  Since herem severely limited interaction between the person put in herem and the rest of the community, it was a powerful enforcement tool.  Also, the plaintiff was permitted to resort to self-help.  If the plaintiff stole took the money owed him from the defendant, that was fine too. (Mitzvah # 51.)

      Whatever the theory, where later Jewish courts had the political power to decide questions for the community and to settle disputes and cases, they did so.


Proving a case

            The basic rule for recovering monetary damages in court is “hamotzei mihavero alav hara’ayah,” the person claiming something someone else has bears the burden of proof.  Plaintiff comes to court with a claim to some of defendant’s property.  If plaintiff does not bring sufficient evidence, the defendant gets to keep his property.  If plaintiff brings sufficient evidence, plaintiff gets defendant’s property.  Things get really complicated when there is evidence going both ways.

            There are several different kinds of evidence.  Given the general rule, “hamotzei mihavero alav hara’ayah,” possession is important evidence, especially when possession is accompanied by a reasonable explanation. Witnesses can testify, and their testimony constitutes evidence.  As we have mentioned before, witness testimony works differently in beit din than it does in American courts.  The litigants cannot be witnesses.  Only adult Jewish men unrelated to the litigants or the case may testify, and the court only allows them to testify if the court is satisfied that the witnesses are credible.  Documents that are properly drawn up and witnessed can stand in for actual witness testimony.  Relevant physical evidence is also considered.  And the court can take judicial notice of things that are commonly known.

            Another kind of evidence is a shvua; the litigant involved swears a formal oath and the oath constitutes evidence of what the litigant swore to. The assumption is that although people will lie, and even lie to the court, people do not in general take a false shvua.  The court decides whether to allow the litigant to take such an oath; the litigant cannot just decide to do so.  The court will not allow a shvua unless the court is convinced the oath will be true.  Typically, the court will allow a shvua where there is some significant evidence for each side, but not enough to constitute a ra’ayah and determine the outcome.  Often these cases involve a partial admission of crucial facts.  If the court decides that a litigant should take a shvua, the litigant has a choice of taking the shvua or losing his claim.

            In mitzvah #58 the author provides a long list of issues related to civil disputes.  He apparently understands the scope of this mitzvah as an obligation for people qualified to be judges to handle the claims of litigants having disputes.  The concluding paragraph matches this understanding, as does his observation that this mitzvah applies to non-Jews as well; it makes sense to say that other cultures are also required to have systems to resolve disputes. 

            The author raises more questions for further study than we could possibly cover in detail.  By doing that, he communicates very effectively that this is a very extensive, complex area of law.  He covers evidentiary issues and other issues related to civil disputes, including but not limited to:

Partial admissions of claims, admissions against interest and situations where a litigant could have presented a better claim than he or she makes.

The minimum value of the property in dispute that would trigger the need for a shvua.

When someone takes an oath and then there is reason to mistrust him.

When someone who is taking an oath anyway wants to add on other topics in the same oath.

Differences in evidentiary law in cases of real property and cases of personal property.

Issues arising when a litigant repays money he owes but repays it in an unusual way.

Situations where it becomes impossible for a party of fulfill an obligation.

Issues related to documents as evidence.

The role of people who are legally incompetent in general or for certain purposes.

Issues of powers of attorney and agency.


Substantive causes of action. 

            1.  Damages caused by animals:

Before we look at specific causes of action, let’s be clear on several basic concepts.

1.  Ancient Middle Eastern law codes (maybe other ancient law codes, too) include casuistic law, law phrased so as to explain a specific case and its outcome.  The cases are usually reflect typical events for the society involved.  Many of the causes of action covered by this series of mitzvot start with casuistic law: damage done by animals’ teeth, hooves and horns; by fire; and by dangerous pits and holes in public thoroughfares. 

            A more sophisticated legal analysis takes a more generalized and conceptual approach, starting with the concepts rather than specific cases.  Indeed, the tana’im and later rabbis push the casuistic cases into a more conceptual framework.

2.  These mitzvot are formulated about oxen.  An ox was a dangerous but necessary instrumentality.  Like cars are to us, oxen were indispensable but everyone knew that having them around was dangerous.  With cars, some dangers are avoidable (drunk driving, texting while driving.)  There are some dangers we just know are going to happen although we do not know when or where (real accidents, skidding on ice.)  Some damages are unavoidable (brakes failing on a car that is well maintained.)  Similar things are true of oxen.

3.  When someone is doing an inherently dangerous activity, one has a responsibility to be careful not to harm other people and their property.  This principle applies to several of the causes of action we will look at:  damages done by animals someone owns, damages done by a hole someone has dug, damages done by a fire someone started.

4.  A plaintiff can only recover for harm that was reasonably foreseeable

based on the defendant’s action.  If the defendant’s action would not be expected to cause harm, the defendant is usually not liable to pay even if damage ensues. 

            When it comes to animals, some damages are reasonably foreseeable and some are not.  For example, domesticated animals will eat if food is available to them, and they are likely to trample over anything in their path.  Those behaviors are always foreseeable.

            For other types of harm animals do, what is foreseeable depends on the particular animal.  For example, a typical ox does not attack people, but some oxen do attack people.  The typical ox is a “tam,” a simple ox; it does not usually attack people, although we know it might.  But an ox that attacks people several times becomes a “muad;” we expect that ox to attack people and so the damage done by such an attack is foreseeable.

4.  A plaintiff can recover damages for personal injury directly

 caused by the defendant even if the defendant’s action was unintentional or unconscious.  Conceptually, people are always “muad.”


Now let us look at specific causes of action as reflected in specific mitzvot.

            Mitzvah #55 reflects predictable damage done by animals’ “teeth and feet,” that is to say when they walk and eat.  Since this behavior is absolutely predictable, the owner of an animal that allows the animal to stray onto someone else’s property will be responsible for what the animals eat and what they trample.  However, since this animal behavior is predictable, someone who leaves things in a public area does so at his own peril.  Our author mentions some of the sub-issues related to this cause of action.  He asks about animals eating things those animals do not typically eat.  He mentions the question of the measure of damages, which might be the amount of loss to the owner of the food the animal ate or the amount of benefit accruing to the owner of the animal for what the animal ate.

            Mitzvah #51 deals with an ox that gores.  Expanding this casuistic case, the mitzvah also covers any case where a domestic animal attacks a person, even if the animal attacks with its feet or mouth. 

            In the dinei hamitzvah section, our author introduces the concepts of tam and muad, and outlines questions for determining which any particular animal is.  He does not say exactly what difference in outcome that makes, but it is clear that the owner of a muad pays damages in some cases where the owner of a tam does not.  This must be a complex question; the author refers us to the first six chapters of Gemara Baba Kama for further study.

            Mitzvah #52 is not directly related to civil law, as the rest of this series of mitzvot are. Under some circumstances, the court is required to execute an animal that attacks and kills a person.  The execution must take place in the presence of the owner of the animal.  This mitzvah prohibits eating the flesh of the executed animal. 

The shoresh of this mitzvah is worth noting; our author takes an obscure, arcane mitzvah and finds a broad moral lesson.  The animal is to be scorned as a source of disaster.  Even though the animal is shogeg, and incapable of understanding, its action makes it abhorrent to people and to God.  Our author seems to be concerned with avoiding the exhibitionist tendencies we see on Oprah, Dr. Phil and countless other outlets in the media. Also, this mitzvah reminds us that we should be extraordinarily careful so that “no disaster or misfortune should ever issue from our hands.” 


2.  Pits and fires.

Mitzvah #53 covers the requirement for the judge to award damages when a defendant digs a hole in a place where the hole is a foreseeable hazard.  (There is nothing new about potholes.)  The mitzvah covers holes big enough so an animal falling in might die from the fall.  That is, the hole must be at least 10 t’fachim deep.  (A tefach, handbreadth, is a little less than four inches.)  According to the author, the person who dug the pit will be liable for damage to animals but not to people or objects.

As our author suggests in the dinei hamitzvah, in determining liability under this mitzvah, location is crucial.  If the defendant digs a hole on his own property, away from the public area, he has little potential liability; someone visiting the defendant’s property should be looking out for unusual things.  If the defendant digs the hole in the public area, though, the defendant has much broader liability; he should have known people and animals would be going by and not expecting a hole.  It might matter if the hole was on his property but adjacent to the public area; technically the property is his, but passing folks do not always stay exactly on the road.  The underlying issue in all these cases is what was foreseeable.  It might also matter if the hole had social utility; if he is digging to set the foundation of a building that will be adjacent to the public area, his liability will be less. 

The author also raises questions arising from people working together.  If someone dug a hole and covered it up, a defendant who comes along and uncovers it will be liable as if he had dug it himself, as he is the one who turned it into a hazard.  The author raises the question of a pit dug by two people together, but he does not answer it.


Mitzvah #56 covers damages done by a fire someone started.  This is an inherently dangerous but socially necessary activity.  But a fire can spread, and the one who started the fire pays damages if the fire spreads and damages other folks or their property in foreseeable ways.

In the dinei hamitzvah section, our author raises questions that should by now seem predictable.  What if the person who started the fire does so far away from the boundaries of his property?  What if the person entrusts a torch to a competent messenger; which one of the two is liable for damages?  What happens if someone entrusts a torch to an incompetent messenger?  What if several people cooperated in starting and spreading the fire?  What if a fire spreads and burns an area where the plaintiff claims he had hidden something expensive?  What happens when someone has a lamp or Chanukah candle and a passerby knocks it over or otherwise spreads the fire?  The author is helping us see that any rule presents problems of definition and other close cases.