The Challenge of Wealth
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
“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.
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
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.