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Saturday, November 1, 2014

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Damages beyond and within our control

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One of the least talked about aspects of war is the economic fallout. While in general terms, estimates of the assessed damage are tallied, the day-to-day personal impact is rarely discussed.

What happens if a wedding needs to be postponed due to the family’s inability to fly in or the groom being called for army service? Can the caterer demand payment for services that were not actually rendered, but for which costs may have been incurred? Can the family demand their deposit back?

Jewish law teaches that one is fully liable for any damages he may cause, “whether accidentally or willfully, whether his is awake or sleeping.” However Jewish law does not require payment if damages were caused indirectly. A talmudic example of such is placing a ladder next to a pigeon coup, which then allows a weasel to climb up the ladder and kill the pigeons.

Despite being morally unacceptable, not every moral wrong carries a financial payment. Such payments could only be enforced in a clearly spelled out contract delineating the impact of unforeseeable events.

In the modern economy, where what happens in China, not to mention the United States, has a huge impact economically on Canadians, we well understand how events beyond our control affect us. We’re often the victims of unforeseen events. And at times we may be victims of more predictable events, such as when those who are not held accountable for their actions cause damage. Such is the case when a minor kicks a soccer ball through our window. While contemporary practice, and moral correctness, may demand that a parent pay for the damages, from a Jewish legal perspective, there’s little one can do. Minors can’t be made to pay damages, and parents can’t be made to pay for damages they did not cause.

Yet liability does extend beyond one’s self, as can be seen from the laws of torts and Chanukah. Ancient marketplaces were often narrow and would be lined with stores, customers, passersby and even animals. People leading animals in the marketplace had to ensure safe passage for others. To use the talmudic example, if someone loads his animal with barley and the barley edges protrude into a store and catch fire from a candle in the store, the animal’s owner would be liable for the ensuing damages. Conversely, if the store’s owner places his candle outside the store, he would be liable for damages caused.

An interesting debate ensues in the case where a storeowner places his Chanukah candles on the street. The overarching theme of Chanukah is “publicizing the miracle,” and the optimal place for lighting candles is outside, in full view of passersby – something quite common in Israel today.

Thus the talmudic sage Rav Yehuda rules that Chanukah is an exception to the above rule, and the storeowner would be exempt from payment. Yet Jewish law rules in accordance with the sages that Chanukah candles or not, a storeowner who puts a candle in a public area is liable for damages. One has the right to walk unencumbered on the street, and one’s religious obligations cannot be fulfilled at the expense of inconveniencing others.

Send comments to rabbijay@torahinmotion.org.

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