Halachic Musings

By Rabbi Yair Hoffman

Mark Sokolich, the Democratic mayor of Fort Lee, New Jersey, has not had an easy time in life. He lost both parents by the age of 13, one after the other. Finally, in high school he got a break. He made all-state on the basketball team and all-county in baseball, winning a number of scholarships. Unfortunately, he broke his ankle, and all the scholarships were withdrawn.

But Mayor Sokolich is more famous for being the intended recipient of major vengeance on the part of New Jersey Governor Christie’s team. Mark Sokolich did not endorse Governor Christie for reelection. It is alleged that, as punishment, Christie’s team ordered two of three access lanes in Fort Lee closed over five mornings, causing major upheavals.

The scandal is better known as Bridgegate.

Bill Baroni, a former deputy executive director of the Port Authority, is now on trial for helping orchestrate the act of revenge. His deputy, David Wildstein, pleaded guilty earlier. Wildstein said he worked with Baroni and another Christie employee on trial, Bridget Kelly, to block the lanes to send Mayor Sokolich a message.

The damage to Fort Lee residents was considerable. They sat in traffic for hours longer than they should have, for five whole days. Our concern, however, is a matter of halachah. What would be the case if the issue was adjudicated in a beis din? Assuming that Baroni and perhaps even the governor himself were to be found guilty, would they have to pay damages to those who suffered?

 

Of Beis Din Past

In the times of the Mishnah, Jewish courts of law had the legal power to assess fines and judgments and handle all sorts of cases. However, historical forces have brought about numerous changes. One such change is that the semichah that our judges once had is no longer in existence. Our courts of law, therefore, are just messengers of the courts of law that Torah Judaism once had (see Shulchan Aruch 1:1 and Rambam, Sanhedrin 5:8).

The differences between modern batei dinim and the courts of Jewish law that we once had are significant. Our courts of law cannot force judgments for those types of damage that are rare. Similarly, our courts cannot generally collect fines that are punitive in nature (S.A. C.M. 1:4). The issue of whether a particular type of payment is construed as a monetary payment or a punitive fine is often the subject of halachic debate. There are, therefore, two types of damage payments: those that are enforceable in a beis din and those that are not. The unenforceable type can be subdivided into two categories–rare damages and those of a punitive nature, which are categorized as a fine.

 

Five Categories
Of Damages

The Talmud lists five categories of damages that were once generally payable: damage, pain, embarrassment, medical expenses, and loss of income. Nowadays, if a person damaged another person bodily, we do not enforce payment on damage, pain, and embarrassment. Why is this so? Generally speaking, bodily damage that actually does harm is a rare thing. Pain and embarrassment, however, are not enforceable because of another issue–they do not involve monetary losses.

Many authorities rule that a court of Jewish law can enforce payment for the last two categories, those of medical expenses and loss of income (C.M. 1:2).

While there are numerous differences between our contemporary courts and those in Talmudic times, if a person does damage another, damages are generally payable in a contemporary beis din (CM 3:1). This is true whether a person has damaged the other’s animal, property, or, in some instances, his actual person.

Some authorities hold that one human being striking another and damaging him is an example of a rare form of damage (Rambam). Causing gridlock through purposeful lane closures might also be considered rather rare.

 

Payment Of
One’s Own Volition

While our Jewish courts cannot collect on judgments for damage that is rare, there is still a mitzvah in the Torah that it is incumbent upon the one who damaged to pay the victim even though it is no longer a damage for which payment can be enforced in a Jewish court of law.

The verse in Sh’mos (21:34) states, “The owner of the pit shall surely pay.” The Ramban (Bava Basra 175b) rules that this verse is a mitzvah incumbent upon the one who damages regardless of whether a Jewish court of law is empowered to collect damages or not. The Ketzos HaChoshen (39:1) cites this Ramban as authoritative halachah.

The obligation to pay damages–even when not fully enforceable–is a greater obligation than a fine-based obligation. How so? A fine is only imposed when a beis din finds that the person is guilty. But when one has actually damaged, then the payment is monetary in nature as opposed to punitive (see Chidushei HaRim cited in Pischei Choshen 10:9).

 

Censure And Self-Help

A beis din can also severely censure a damager who does not make restitution to the one who was damaged and does not appease him. However, if the damager paid the victim an amount that the beis din deems sufficient, then the censure is removed even if the victim was not appeased (see CM 1:5).

If the person who was damaged took hold of an item belonging to the one who damaged him and it was a type of damage that is not enforceable, the victim may keep the item. There is an opinion that the damaged party can even ask the beis din to appraise the damage in order to determine how much the damaged party can take hold of (see Tur 404).

 

Payments That Are Enforceable

Another type of enforceable damage is the issue of moser–when a person improperly informs upon another Jew to the authorities, when an unfair law has been imposed (see S.A. C.M. 1:4). The damage that the informer had caused against the victim is recoverable in a modern beis din.

There is another type of damage which is considered enforceable. This is an indirect form of damage called “garmi.” A garmi is when an indirect form of damage is viewed as a clear, present, and highly likely result. If Reuven were to rip up Shimon’s train ticket, for example, that is a garmi form of damage. If Reuven were to poison Shimon’s dog by placing poisonous food next to him, this is considered grama, not garmi; it may very well be that Shimon’s animal will not eat the food. Garmi damages are enforceable in a beis din, but grama damages are not.

 

Payment Conditions

When payment must be made, the damager is obligated to pay these damages with the best of his holdings (see S.A. C.M. 389:2). If he had properties with a lien on them, the damaged party may collect from those properties as well.

The damage is evaluated at the value that existed at the time the damage happened (see Tur CM 404). It is also in accordance with the damage at that time. The damages are arrived at by subtracting the value of the item after it was damaged from its value before it was damaged. The broken item is given to the victim and the damager pays him the cost of the damage. (See C.M. 387:1.) Some are of the opinion that the damager is obligated to pay for the repair of the item, if the victim so desires. (See Shach C.M. 95:18.)

Loss of use is only applicable when a human being damages another person, but not when an animal or an item is damaged.

 

Just Following Orders?

There is a concept in the Talmud (Kiddushin 42b) known as “Ein shliach lidvar aveirah–there is no such thing as an agent for committing a sin.” The rationale for this is “Divrei haRav v’divrei ha’talmid–divrei mi shomin?” When you have the command of the Master and the command of the student, to whose words do we listen? Thus, only the “messenger” would be liable.

Generally speaking, this concept would exonerate those in the upper chain of communication in what is now known as Bridgegate. But a gentile is not commanded in the 613 mitzvos of the Creator. That being the case, the logic of “divrei HaRav” would not necessarily apply (Yam Shel Shlomo B.K. 10:50). Even though America’s legal system would certainly proscribe the vengeful act of closing off a bridge merely because a city’s mayor did not endorse a candidate, the fear of the law, apparently, is not tantamount to the fear of Heaven.

 

Conclusion

There is a great lesson here. Our fear of Heaven should clearly be above the fear of the law of the land. This truth is so evident that its veracity applies to all peoples. After Yom Kippur and the yamim tovim, we must certainly do what we can to observe all of Hashem’s laws most meticulously. The Talmud tells us that one of the first questions that the soul is asked after it departs from this world is “Did you conduct your business affairs with honesty?” This question is asked even before the question of whether one has set aside time for Torah study.

The author can be reached at Yairhoffman2@gmail.com.

LEAVE A REPLY

Please enter your comment!
Please enter your name here