How very horrifying it was to see video footage of the Tsarnaev brothers gleefully place down a bomb that murdered four and injured dozens. It is not just the callous banality of their deeds, it was the smirk on one of their faces. It was their joy in their involvement that sickens and repels us.
But are we really so different? As of this writing there are protests going on in Israel concerning the government’s decision to draft Yeshiva students. The draft and its protest is not the issue. The issue is how can we not condemn the horrifying actions of religious Jewish men pushing and shoving huge metallic garbage bins into a large crowd of people?http://www.youtube.com/watch?feature=player_embedded&v=0hQJEietHFk
Let us just do a double take here. Did we really see this? There is no question that unleashing such a large, massive, metallic object into a crowd of people can cause both serious injury and or death. How is this so substantially different than the sickening actions of the Tsarnaev brothers?
One difference is that perhaps the victims hit by the massive garbage bin have a greater chance of getting out of the way. But what if they can’t? What if they get stuck, or fall and trip? It is deeply grieving that our brethren could even contemplate this, much less actually do it. The combination of the mass and velocity here could very easily create deadly force.
One of the fundamental principles of the Mussar movement is that learning the relevant sections of halacha to a particular sin, raises our awareness to that Aveirah. With this in mind, let us briefly review what the Shulchan Aruch Choshan Mishpat section has to say about such behavior.
The general prohibition of trying to hurt another person is found in Choshain Mishpat 420:1. There, the Shulchan Aruch writes that the Torah is concerned that additional injury not be caused to someone receiving a punishment – all the more so in regard to innocent people in a crowd.
The Shulchan Aruch further tells us that anyone who even lifts his hand to strike another is called a “Rasha” an evil-doer – even if he ended up not doing it. Here, of course, they let the garbage can fly. They are worse than Rashaim – evil-doers. The Ramah writes that there is a Cherem Kadmonim on those that strike others. The Achronim bring up the question as to whether a new ban is required to deal with these people or whether one may rely upon the ancient Cherem placed upon such people. What is the issue? The issue is counting the person in a minyan.
The video tapes should be carefully scrutinized to identify the perpetrators of this disgusting act and they should face the consequences of their disturbing act. Political protest is one thing; hurting others and endangering lives is quite another.
How do we look at this from a halachic stance? There is no difference whether someone hurt someone with his hands, or by hurling a rock, or by firing an arrow, or even by releasing a dam of water (See SA 384:1). He is equally liable and these are all sub-categories of Adam HaMazik – human beings who damage. What would happen, however, if any of the damaged parties were to bring the perpetrators to a Beis Din?
LIMITATION OF OUR COURTS
In the times of the Mishna, 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 Smicha 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.
The differences between modern Batei Dinim, courts of Jewish law and the courts of Jewish law that we once had are significant. We will focus on two such differences. Our courts of law cannot force judgments on those types of damages that are rare. Similarly, our courts cannot generally collect fines that are punitive in nature. 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.
TWO TYPES OF DAMAGES
There are, therefore, two types of damage payments: Those that are enforceable in a Beis Din and those that are non-enforceable in a Beis Din. The non-enforceable type can be sub-divided into two categories – Rare damages and those of a Punitive nature – that are categorized as a fine.
Although the Talmud lists five categories of damages that are generally payable, 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.
What about the other two? Many authorities do rule that a court of Jewish law can enforce payment for the categories of Medical Expenses and Loss of Income.
What might be an example of a rare damage? Some authorities hold that one human being striking another and damaging him is an example of a rare form of damage (Rambam).
While there are numerous differences between our contemporary courts and those in Talmudic times, if a person does damage another, the damages are generally payable in a contemporary Bais Din. This is true whether a person has damaged the other’s animal, property, or, in some instances, his actual person.
MITZVAH TO PAY EVEN WHEN NON-ENFORCEABLE
It is also interesting to note that while our Jewish courts cannot collect on judgments for damages that are 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 Shmos (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 the damages or not. The Ktzos HaChoshen (39:1) cites this Ramban as authoritative Halacha.
The obligation to pay for damages even one that is not fully enforceable is a greater obligation that a fine-based obligation. A Bais Din can severely censure a damager who does not make restitution to the one who was damaged and does not appease him. If the damager paid the victim an amount that the Bais Din deems to be sufficient, then the censure is removed even if the victim was not appeased.
WHEN THE VICTIM TOOK HOLD OF THE FUNDS
If the person that 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 Bais Din to appraise the damage in order to determine how much the damaged party can take hold of.
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 levied. The damage that the informer had caused against the victim is recoverable in a modern Bais 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 results is viewed as a clear, present and highly likely result. If Reuvain were to rip up Shimon’s train ticket, for example, that is a Garmi form of damage. If Reuvain were to poison Shimon’s dog by placing a poisonous food next to him, this is considered Gramah not Garmi. It may very well be that Shimon’s animal will not eat the food. Garmi damages are enforceable in a Bais Din. Gramah damages are not.
When payment must be made, he is obliged to pay these damages with the best of his funds. 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 that the damage happened. It is also in accordance with the damaged at that time. The damages are arrived at by subtracting the value of the item before it was damaged with the value of the item after it was damaged. The broken item is given to the victim and the damager pays him the cost of the damage. Some are of the opinion that the damager is obligated to pay for the repair of the item, if the victim so desires.
Loss of Use is only applicable when a human being damages another person, but not when an animal or an item is damaged.
THE ISSUE OF PENANCE
In our case of the hurled garbage bin, even after payments are made for damages there is still an obligation to apologize. The Lechem Mishna explains (on Rambam Chovel UMazik 5:9) that since he benefitted from hitting the other on purpose – he does not achieve atonement merely by paying damages. He must still apologize.
The events of this week are indeed horrifying. The solution to these hooligans is to begin teaching them real Torah. No one should be able to attend a hafgana or rally without having first past a class in basic laws of Choshain Mishpat.
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 SA CM 1:1; Rambam Sanhedrin 5:8
 SA CM 1:4. There are exceptions to this, such as when the issue is a very common one, and there is a loss of money involved (see Rashba).
 SA CM 1:2
 SA CM 3:1
 A fine is only obligatory when a Beis Din finds that one is guilty. See Chiddushei HaRim cited in Pischei Choshain 10:9. This is not the case when one has actually damaged and the payment that must be made is monetary in nature.
 SA CM 1:5.
 The Tumim citing the Yam Shel Shlomo.
 SA CM 1:4
 SA CM 389:2
 Tur CM 404
 SA CM 387:1
 Shach CM 95:18; 387:1