The Laws of Damages: From Torah to Mishnah

INJURING ANOTHER PERSON

((18) When men quarrel and one strikes the other with stone or fist, and he does not die but has to take to his bed— (19) if he then gets up and walks outdoors upon his staff, the assailant shall go unpunished, except that he must pay for his idleness and his cure.

KILLING A SLAVE

(20) When a man strikes his slave, male or female, with a rod, and he dies there and then, he must be avenged. (21) But if he survives a day or two, he is not to be avenged, since he is the other’s property.

CAUSING A WOMAN TO MISCARRY

(22) When men fight, and one of them pushes a pregnant woman and a miscarriage results, but no other damage ensues, the one responsible shall be fined according as the woman’s husband may exact from him, the payment to be based on reckoning. (23) But if other damage ensues, the penalty shall be life for life, (24) eye for eye, tooth for tooth, hand for hand, foot for foot, (25) burn for burn, wound for wound, bruise for bruise.

INJURING A SLAVE

(26) When a man strikes the eye of his slave, male or female, and destroys it, he shall let him go free on account of his eye. (27) If he knocks out the tooth of his slave, male or female, he shall let him go free on account of his tooth.

OX KILLING A PERSON

(28) When an ox gores a man or a woman to death, the ox shall be stoned and its flesh shall not be eaten, but the owner of the ox is not to be punished. (29) If, however, that ox has been in the habit of goring, and its owner, though warned, has failed to guard it, and it kills a man or a woman—the ox shall be stoned and its owner, too, shall be put to death. (30) If ransom is laid upon him, he must pay whatever is laid upon him to redeem his life. (31) So, too, if it gores a minor, male or female, [the owner] shall be dealt with according to the same rule. (32) But if the ox gores a slave, male or female, he shall pay thirty shekels of silver to the master, and the ox shall be stoned.

OPENING A PIT

(33) When a man opens a pit, or digs a pit and does not cover it, and an ox or an ass falls into it, (34) the one responsible for the pit must make restitution; he shall pay the price to the owner, but shall keep the dead animal.

OX INJURING ANOTHER OX

(35) When a man’s ox injures his neighbor’s ox and it dies, they shall sell the live ox and divide its price; they shall also divide the dead animal. (36) If, however, it is known that the ox was in the habit of goring, and its owner has failed to guard it, he must restore ox for ox, but shall keep the dead animal.

STEALING ANIMALS

(37) When a man steals an ox or a sheep, and slaughters it or sells it, he shall pay five oxen for the ox, and four sheep for the sheep.—

PERSONAL INJURY

(19) If anyone maims his fellow, as he has done so shall it be done to him: (20) fracture for fracture, eye for eye, tooth for tooth. The injury he inflicted on another shall be inflicted on him.

TUNNELING THIEVES

(1) If the thief is seized while tunneling, and he is beaten to death, there is no bloodguilt in his case. (2) If the sun has risen on him, there is bloodguilt in that case.—He must make restitution; if he lacks the means, he shall be sold for his theft. (3) But if what he stole—whether ox or ass or sheep—is found alive in his possession, he shall pay double.

ANIMALS CAUSING DAMAGE

(4) When a man lets his livestock loose to graze in another’s land, and so allows a field or a vineyard to be grazed bare, he must make restitution for the impairment of that field or vineyard. (5) When a fire is started and spreads to thorns, so that stacked, standing, or growing grain is consumed, he who started the fire must make restitution.

(1) There are four primary causes of injury: the ox and the pit and the crop-destroying beast and fire. [The distinctive feature of] the ox is not like [that of] the crop-destroying beast, nor is [the distinctive feature of] either of these, which are alive, like [that of] fire, which is not alive; nor is [the distinctive feature of] any of these, whose way it is to go forth and do injury, like [that of] the pit, whose way it is not to go forth and do injury. What they have in common is that it is their way to do injury and that you are responsible for caring over them; and if one of them did injury whoever [is responsible] for the injury must make restitution [to the damaged party] with the best of his land.

(4) Five [agents of damage] rank as harmless and five as an attested danger. Cattle are not an attested danger to butt, push, bite, lie down, or kick. The tooth [of an animal] is an attested danger to eat that which is for it; The leg [of an animal] is an attested danger to break [things] as it walks along; So also is a warned ox [an ox that has gored before]; And an ox that damages in the domain of the damaged party, and human beings. The wolf, the lion, the bear, the leopard, the panther and the snake all rank as attested danger. Rabbi Eliezer says: When they are tame they are not attested danger, but the snake is always an attested danger. What is the difference between that which is harmless and that which is an attested danger? The harmless pays half-damages from its own body and the attested danger pays full damages from the best property (of its owner and guardian).

(2) In what way is the category of "tooth" presumed to be dangerous? It is expected to eat what is fit for it. An animal is presumed to eat fruits and vegetables. If it eats clothing or utensils [various items], the owner must pay half the damages. In what context is this true? - in the domain of the damaged. However, if it happened in the public domain, the owner would be exempt; except, that is, for the amount of money the owner has now saved in feed cost for the animal, which he should pay back to the damaged party. When is this true? - If the animal ate in the middle of the street, then only that which the owner saved in food-costs need be paid back. But if the animal ate from the side of the street, then the owner must pay full damages. If the animal ate from the entrance of a store, then only that which the owner saved in food-costs need be paid back. But if the animal ate from the store itself, then the owner must pay full damages.

(3) If a dog or a goat jumped from a rooftop and broke vessels, [the owner] pays full damages because they are Muad. If a dog took a cake (ie. with hot coals sticking to it), went to a pile of grain, and he ate the cake and the grain caught on fire, [the owner] is required to pay full damages for the cake and half the damage for the grain.

(1) [If] one places a jar in a public domain and another comes and trips on it and breaks it, he is exempt [from damage to the jar]. And if he was injured by it, the barrel's owner is liable for his damages. [If] one's jar broke in a public domain and another slipped in the [spilled] water, or was injured by its shards, [the jar's owner is] liable. Rabbi Judah says, if intentional, he is liable. If unintentional, he is exempt.

(2) [If] one pours water in a public domain, and another is damaged by it, he is liable to pay damages. One who hides thorns or glass [in the public domain], or one who builds his fence [bordering the public domain] with thorns, or a fence that falls into the public domain -- if others were injured, he is liable to pay their damages.

(3) [If] one brings his straw [or thatch] into the public domain for fertilizer and another was damaged by them, he is responsible for the damage. And [furthermore], anyone who first [takes possession] of them is entitled [to the straw]. Rabbi Shimon ben Gamaliel says, anyone who destroys [objects] in the public domain, thereby causing damage is responsible to pay, and anyone who first [takes possession] of them is entitled. [If] one turns over dung in the public domain and another is damaged by it, he is responsible for the damage.

(4) [In the case of] two potters who were walking one behind the other, and the first tripped and fell, and the second tripped on the first, the first [potter] is liable for the damage to the second [potter].

(5) One came with his barrel and one came with his beam. [If] this one's jug were broken on this one's beam, [the beam's owner] is exempt, because this one has permission to walk and this one [also] has permission to walk. If the beam's owner was in front, and the barrel's owner was behind, [then] if the barrel broke on the beam, the beam's owner is exempt. [But] if the beam's owner stopped, he is liable. [But] if he said to the barrel's owner, "Stop," he is exempt. If the barrel's owner was in front, and the beam's owner was behind, [then] if the barrel broke on the beam, then he is liable. [But] if the barrel's owner stopped, he is exempt. [But] if he said to the beam's owner, "Stop," he is liable. So too [the case of] one who comes with his candle and one with his flax.

(6) [In the case where] two people were traveling in the public domain, one running and the other walking, or if both were running, and they damaged each other, both are exempt.

(7) [If] one was splitting [wood] in a private domain and [thereby] caused damage in the public domain, or [split wood] in the public domain and caused damage in a private domain, or [split wood] in a private domain and caused damaged in a different private domain, he is liable.

(8) [If] two oxen that are categorized as "tam" (meaning that they have not proven themselves "muad", or prone to causing injury) injured each other, they pay half-damages of the excess (i.e., the damages to one are subtracted from the damages to the other, the difference is calculated, and the owner of the ox that caused the greater damage pays half the difference). [If] both [oxen] are categorized as "muad" (prone to causing damage), they pay full damages of the excess. [In the case where] one [ox] is a "tam" and one is a "muad": [If] the "muad" injures the "tam", its owner pays full damages of the excess. [If] the "tam" injures the "muad", its owner pays half-damages of the excess. And similarly, [in the case of] two men who injured each other, they pay full damages of the excess. [If] a man injured a "muad" [ox] and the "muad" injured the man, they pay full damages of the excess. [If] a man injured a "tam" [ox] and the "tam" injured the man: [If the injury caused by the] man to the "tam" [is greater] then he pays full damages of the excess. [If the injury caused by the] "tam" to the man [is greater] then he [the owner of the ox] pays half-damages of the excess. Rabbi Akiva says, even [in the case where the injury caused by the] "tam" to the man [is greater], he [the owner of the ox] pays full damages of the excess.

(9) [Regarding the case of ] an ox worth a maneh (100 zuz) that gored an ox worth 200 [zuz] and the carcass is worthless, he [the owner of the dead ox] takes the [live] ox. [Regarding the case of ] an ox worth a 200 [zuz] that gored an ox worth 200 [zuz] and the carcass is worthless: Rabbi Meir says, this is the case referred to by the verse (Exodus 21:35), "And they shall sell the live ox and divide its worth." Rabbi Judah said to him, "And is this truly the law?" You have fulfilled [the verse], "And they shall sell the live ox and divide its worth," but you have not fulfilled [the continuation of the verse] "And they shall also divide the dead [ox]." How is this? This refers to [the case of] an ox worth a 200 [zuz] that gored an ox worth 200 [zuz] and the carcass is worth 50 zuz, that this one takes half the value of the live [ox] and half the value of the dead [ox], and this one takes half the value of the live [ox] and half the value of the dead [ox].

(10) There is [a case] where one is liable for the action of his ox, but exempt from his own action, [and a case] where he is exempt for the action of his ox, but liable for his own action. [If] his ox embarrassed [another person], he is exempt. [But if] he embarrassed [another person], he is liable. [If] his ox blinded the eye of his slave or knocked out his tooth, he is exempt. [But if] he blinded the eye of his slave or knocked out his tooth, he is liable. [If] his ox injured his father or mother, he is liable. [But if] he injured his father or mother, he is exempt (from monetary damages). [If] his ox lit a pile of grain on the Sabbath, he is liable. [But if] he lit a pile of grain on the Sabbath, he is exempt (from monetary damages). [In the last 2 cases, he is exempt from monetary damages] because he is liable for capital punishment.

(11) [If] an ox was chasing after another ox, and caused damage. This one says "Your ox damaged," and this one says, "No, your ox was injured on a rock," the burden of proof is upon the one who wishes to be compensated. If two [oxen] were chasing after one [ox], this one says, "Your ox damaged," and this one says, "Your ox damaged," both are exempt. If both [oxen] belonged to a single owner, both are liable. If one was large and one was small, and the injured [owner] says, "The large one damaged," and the one who damaged says, "No, the small one damaged" ... [Or If] one was a "tam" (not observed to habitually inflict damage) and one was a "muad" (observed to habitually inflict damage), and the injured [owner] says, "The 'muad' damaged," and the injurer says, "No, the 'tam' damaged" ... ... [in these cases] the burden of proof is upon the one who wishes to be compensated. If two [oxen] were damaged, one large and one small, and two [oxen] caused the damage, one large and one small... ... The injured [owner] says, "The large one damaged the large one and the small one damaged the small one," and the one who damaged says, "No, the small one injured the large one and the large one injured the small one" ... [Or if] one was a "tam" and one was a "muad," and the injured [owner] says, "The 'muad' damaged the large one and the 'tam' damaged the small one," and the one who damaged says, "No, the 'tam' injured the large one and the 'muad' injured the small one" ... ... [in these cases] the burden of proof is upon the one who wishes to be compensated.

(1) If an ox gored a cow [and it died] and its newly born offspring was found [dead] at its side, and it is not known if the cow gave birth before the ox gored, or if after the ox gored the cow gave birth, he [ox's owner] pays half damages for the cow and one quarter damages for the newborn. And if a cow gored an ox and its [cow] newly born young was found at its side, and it is not known if it gave birth before she gored, or if after she gored she gave birth, he [cow's owner] pays half damages from the [value of the] cow and one quarter damages [from the value] of the newborn.

(4) If an ox intended [to gore] another ox and struck a woman and her offspring came forth, its owner is not liable for the value of the offspring. But if a man intended to strike his fellow and struck a woman and her offspring came forth, he must pay the value of the offspring. How does he pay the value of the offspring? They assess the value [on the slave market] of the woman before she gave birth and the value after she gave birth. Rabban Shimon ben Gamaliel said: If so, once a woman gives birth she is more valuable. Rather, they assess how much the offspring would be worth [were they to be sold as slaves], and he pays it to the husband, or if she has no husband, to his heirs. If she was a freed slave or a convert he is exempt.

(1) A man who brings sheep into a corral and locks the door in front of them properly, but the sheep escapes and causes damage, he is exempt. If he did not lock the door in front of them properly, and it went out and caused damage, he is liable. If the wall broke down at night, or if thieves broke it and the sheep escaped and caused damage, he is exempt. If thieves took them out, then the thieves are liable.

(2) If the owner left it in the sun, or he left it in the care of a deaf-mute, a shoteh, or a minor, and it escaped and caused damage, he is liable. If he handed them over to the care of a shepherd, the shepherd enters in his place [he assumes responsibility] . If a sheep fell into a garden and derived benefit, he pays from what which it benefited. However, if it had gone down in its usual manner and caused damage, he would pay the damage that it caused. How is recompense payed for the amount of damage? We compare the value of a seah's measurement in the field as it was [before the damage], with what its value is now [after damage]. Rabbi Shimon says: If it consumed ripe fruits, he pays [value of] ripe fruits. If it consumed one se'ah's worth, he pays one se'ah. If two se'ah's worth, two se'ah.

(3) One who made a stack of sheaves in his fellow’s field without his permission, and the owner of the field’s cattle ate the sheaves, he [the field owner] is exempt. If [the cattle] were injured by them, he is liable. If he made the stack with his permission, the owner of the field is liable.

(4) One who sends a fire in the hands of a deaf-mute, a shoteh, or a minor is exempt by the laws of man, but he is liable by the laws of Heaven. If he sent it in the hands of a person of sound senses, the one of sound senses is liable. If one brought the fire and another brought the wood, he that brought the wood is liable. If one brought the wood and another brought fire, he that brought the fire is liable. If another came and lit the fire, the one who lit the fire is liable. If the wind fanned the flames, they are all exempt. One who sent forth fire, and it consumed wood or stones or dust, he is liable, as it says: “When a fire breaks out and spreads to thorns so that the stacked corn is consumed, or the standing corn, or the field, he that kindled the fire shall surely make restitution” (Exodus 22:5) If it passed over a fence four cubits high, or over a public path, or over a river, he is exempt. One who kindled fire within his own domain, how far does it need to spread [for him to be liable]? Rabbi Eleazar ben Azariah says: We look at it as if it was in the middle of a kor’s space[75,000 square cubits]. Rabbi Eliezer says: Sixteen cubits [in every direction] like a public road. Rabbi Akiva says: Fifty cubits. Rabbi Shimon says: ‘He that kindled the fire shall surely make restitution’, all is in accordance with the nature of the fire.”

(5) One who set fire to a stack of sheaves and in it there were utensils and these caught fire: Rabbi Yehudah says: He must pay back for what was in it. But the Sages say: He pays only for a stack of wheat or barley. If a kid was fastened to it and a slave stood near by, and they were burnt together, he is liable. If there was a slave fastened to it and a kid stood near by and they were burnt together, he is not liable. And the Sages agree with Rabbi Yehudah that if one set fire to a large building, he must pay back for everything in it; for such is the customary for people to leave [their items] in their houses.

(6) If a spark went out from under the hammer and caused damage, he is liable. If a camel laden with flax passed by in the public domain and its load of flax entered into a shop and caught fire from the storeowner's candle and lit a large house on fire, the owner of the camel is liable. But if the shopkeeper left his candle outside, the shopkeeper is liable. Rabbi Judah says: If it was a Hannukah light, he is exempt.

(1) One who injures his fellow is liable concerning him for five categories [of payment]: damages, pain, healthcare, unemployment, and shame.

For damages, how [is this calculated?] One who puts out his eye, cuts off his hand, breaks his leg—we see him as if he were a slave sold in the marketplace, and we evaluate how much he was worth [the injury] and how much he is worth now.

Pain? When he burned him with a spit or a nail—even on his fingernail—anything where there is no [permanent] wound, we evaluate how much a similar person would want to pay to be spared this [pain].

Healthcare? When he strikes him, he is liable for his healthcare costs. If swellings arose on him, if they were because of the strike, then he is liable; but if it was not because of the strike, he is exempt. If the swelling healed and then reopened and then healed and reopened, he is liable for his healthcare. If it healed entirely, he is exempt from his healing.

Unemployment? We see him as if he were a guard of gourds, since he already gave him the value [for the loss] of his hand or his leg.

Shame? All depends on the one who shames and the one who is shamed. One who shames a naked person, a blind person or a sleeping person is liable. If a sleeping person embarrasses, he is exempt. One who falls from the roof and caused damage and shamed, he is liable for damages and exempt for shame, as it is written, "[when two men fight and the wife of one comes out to save her husband,] and she puts out her hand and seizes his genitals (lit. damages his shame) [you shall cut off her hand]" (Deuteronomy 25:11-12). No one is liable for shame unless one intended to cause it.

(2) This is a stringency regarding a person over an ox [causing injury]: a person pays damages, pain, healthcare, unemployment and shame, and pays the value of fetuses, while an ox [its owner] pays only damages, and is exempt from the value of fetuses.

(6) One who shouts at his fellow, he gives him a sela (twenty zuz). Rabbi Yehudah in the name of Rabbi Yose the Galilean says: "a maneh (one hundred zuz)". One who slaps his fellow, he gives him two hundred zuz; with the back of the hand, he gives him four hundred zuz. If he split his ear, plucked his hair, spit [at him] and his spit touched him, stripped his cloak from him, or uncovered the head of a woman in the street, he gives him four hundred zuz. (This is the principle:) it is all according to the person's honour. Rabbi Akiva says: "Even the poor of Israel, we see them as if they are free people who have lost their property, because they are children of Abraham, Isaac and Jacob." (And) there was an incident of someone uncovering the head of a woman in the street. She came before Rabbi Akiva, and he required him to give her four hundred zuz. He said to him, "Rabbi, give me time." So he gave him time. [The man] watched her stand at the entrance of her courtyard, broke a pitcher in front of her, and in it was issar [eight prutot] of oil. She uncovered her head and scooped [the oil], and rubbed her hands on her head. He placed witnesses against her and he came before Rabbi Akiva. He said to him, "Rabbi, to her I gave four hundred zuz?!" He replied, "You haven't said anything." One who injures himself, even though he is not permitted, he is exempt. Others who wound him are liable. And one who cuts his own shoots, even though he is not permitted, he is exempt. Others who cut his shoots are liable.

(7) Even when he gives him [the payment], he will not be forgiven until he seeks it [pardon] from him, as it says, "Therefore, restore [Abraham's] wife[—he is a prophet and will intercede for you]" (Genesis 20:7). And from where do we know the forgiver should not be cruel? As it says, "Abraham prayed to God and God healed Avimelech" (Genesis 20:17).

One who says, "Put out my eye," "Cut off my hand," "Break my leg," he [who did the act] is liable. [One who says, "Put out my eye] on the condition that you will be exempt," he is liable. "Tear my clothes," "Break my vessel", he is liable. [If it was said] on the condition that you will be exempt, he is exempt. "Do this to so-and-so on the condition that you will be exempt," he is liable whether it is his body or his property.