EXPLAINING NEZIKIN

In this chapter, Rambam elucidates his view of the reasons for the laws he codified in Sefer Nezikin, the Book of Torts. In general, he sees these laws as geared to end injustice and to prevent damage being caused. As an overall category, this certainly seems to make sense, but some of the applications will be somewhat surprising.

The classical examples of Torts are those committed by people’s property, the types of damage listed in the beginning of Baba Kama, the horns, teeth, and feet of animals, as well as a pit one dug, and a fire that one set. In each of these, Rambam says, the point of the rule is to make the owner of the cause of damage take proper care of his property. That overall reason explains many of the details of these laws as well, namely that shen va-regel, the damage caused by tooth (an animal eating or biting things) or foot (kicking or trampling) are freed of obligation in a public place. In Rambam’s view, it is unreasonable to expect an animal’s owner to watch for that, and the person who places his property in the public domain should have taken account of the presence of animals in that domain.

RAMBAM’S VIEW OF TAM AND MUAD

Damage caused by a horn (keren) on the other hand is more preventable and therefore more widely culpable. Here, Rambam notes the distinction between an animal whose owner can assume it was docile and one whose owner has already been warned of its aggressive tendencies. In the former case—as the Torah says—the owner only pays half the damage, but in the latter, he pays the full damages. Rambam does not elaborate but his mention of the distinction in this context suggests that he saw it as a result of the owner’s responsibility to take care of the animal—a docile animal required less care than one which had previously attacked other animals.

Interestingly, the gemara records a dispute as to whether hatsi nezeq (the half damages the owner is required to pay) is to be considered mamon, the monetary repayment of damage the owner really owes to the damaged party, or kenas, a fine. In explaining the dispute, the gemara sees the mamon view as saying that the owner should really have been obligated to pay the whole thing, since oxen tend to gore other things, but the Torah took pity on him. The kenas view, which Rambam codifies in Mishneh Torah, states that the owner had no real responsibility to expect his ox to gore, but that the Torah charged the owner half-damages so that he would be extra careful with his animal. Rambam’s simple assumption that the different levels of payment reflect different responsibilities of care is thus a more complicated claim than it would first seem. The simplest reading of the gemara, it seems to me, would have differentiated between the Torah’s desire to have the owner take extraordinary care and a situation where there is a simple obligation of care.

KILLING THE ANIMAL TO PUNISH THE OWNER

In two cases where the Torah prescribes killing the animal, Rambam interprets the act as a punishment to the owner, again so as to stimulate him or her to take proper care of the animal. So, too, when an animal that a human being had sexual relations with is put to death, Rambam sees that also as a punishment to the owner.

Here, too, Rambam’s reason is surprising considering the Talmudic evidence. First, the Mishnah rules that cases of putting an animal to death require 23 judges, and the gemara derives it from a hekesh, a juxtaposition of verses that compares the death sentence of a person to the death sentence of an animal. That reasoning at least seems to indicate that the court case is about a death penalty, not just about a monetary loss to the owner. Perhaps we could have explained that as just indicating what a serious loss to the owner this would be (although that should really depend on amounts of money involved, rather than the fact of its being an animal). Alternatively, we could perhaps suggest that the owner’s responsibilities towards his living possessions include protecting it from acts that will lead to its being killed, so that the trial is for the owner (and other animals’ owners) to appreciate the seriousness of their responsibility.

THE MISHNAH’S REASONS FOR PUTTING THE ANIMAL TO DEATH

However, the Mishnah offers two reasons for why we put this animal to death—either that a human’s having come to sin with it makes it worthy of death or to save the embarrassment of the continuing memory that people would have of the sin of this animal and such and such person. In either reason, the focus seems to be on the animal’s role in the sin, not on the punishment of the owner. While Rambam may be correct that we do not actually hold the animal liable, and that the killing of the animal mostly punishes the owner, our motives in killing the animal do not seem primarily devoted to encouraging greater watchfulness on the part of the owner.

Rambam adds that people are as solicitous of their property as they are of themselves, so that if we threaten to kill animals that commit certain wrongs, the owners will take the issue very seriously. He points out that when Yosef’s brothers are caught with the goblet, they offer themselves and their donkeys as slaves to Yosef, equating themselves and their animals. This equation may somewhat explain why there would be a court of 23 for those cases—since to the owner, having an animal killed will be somewhat akin to having a member of the family killed, we treat the court case with the same seriousness regardless of the amount of money involved.

KILLING THE PURSUER

The halakhah of rodef, that we are allowed to kill someone who is on the way to committing a wrong, Rambam points out, only applies to murder and rape. If, in other words, the only way we could prevent a burglary (where, for example, the robber was unarmed) was to shoot the burglar, we would not be allowed to do so. Rambam explains that it is only in the cases of murder and rape that the act is unfixable and therefore needs to be prevented completely. Other acts, however, can be repaired (I am not sure what this means in terms of someone who is chasing someone else to cut off their arm—assuming there is no chance of a loss of life—or to smash their teeth. We do not generally see that person as a rodef who we can kill, but the damage that is going to be caused is irreparable as well). For other serious sins that are liable for the death penalty, and therefore might reasonably be seen as worth preventing the sinner from engaging in at all costs, Rambam notes that they are private sins, and therefore the need to prevent them is not as pressing. These two, however, affect another person and therefore need more protection.

In a brief paragraph (not worth an extra section heading), Rambam suggests that the obligation to return someone else’s lost property is not only because it instills a valuable moral quality, but also because it will lead to reciprocity. That is, if people know that their own lost objects will be announced and returned by others, they will be more likely to return the lost objects that they find. Interestingly, Rambam adds that the same is true of kibbud av va-‘em, honoring one’s parents—as children see their parents honoring their grandparents, they too learn to honor their parents. It is not the insight itself that I find interesting (There’s a famous story that makes the same point—an elderly parent is living with his son and daughter in law. With advancing age, the grandfather’s hands have begun to shake and he sometimes drops things, so that he has broken several of the family’s china plates. To avoid this happening, the family gets him a wooden plate and bowl, so that no matter what he drops, it will not break. When the grandfather passes away, the grandson, who had been very attached to his grandfather, asked if he could have the bowl and plate. The parents, surprised, agreed, but asked why. "So I will have them ready for when you are older," was the reply), but that Rambam was willing to include the perspective of social utility in his view of why the commandment was given.