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 Shabbat Parashat Bechukotai| 5766P’ninat MishpatMishpat Ve halacha Be Israel - Part X - Liability in Indirect Damage (G’rama) - Harav Yedidya Kahane
The Rules and Procedures of our beit din have the following provision: “The sides agree and accept upon themselves that beit din may obligate payment even for indirect damage (g’rama) and preventing gains, according to the circumstances.”
In principle, when one causes damage through g’rama he is “exempt from paying in the laws of man and obligated to pay in the laws of Heaven” (i.e. he has only a moral obligation to pay). So says the baraita,cited in Bava Kamma 55b: “R. Yehoshua said: There are four things that the one who does them is exempt to pay in the laws of man and obligated to pay in the laws of Heaven: one who makes a hole in his friend’s fence before his animal; one who bends his friend’s stalks in the way of a fire; one who hires false witnesses to testify; and one who knows testimony on his friend’s behalf and does not testify.”
In these cases, because the damage is done indirectly, beit din cannot make the damager pay. However, it is forbidden to damage through g’rama (Bava Batra 22b). Therefore, the moral obligation to pay for the damage takes effect, and one is not forgiven for his sin until he does so.
In truth, we have found cases that appear to be indirect damage, where beit din can force one to pay, including the following cases: one who burns his friend’s document, preventing him from receiving payment (Bava Kamma 98b); one who informs an unscrupulous person of his friend’s property’s whereabouts; some cases where a beit din renders a mistaken ruling. These g’rama-like casesare known as garmi.
Rishonim struggle to uncover the distinction between g’rama and garmi. The Ramban says that in a case of garmi, one is obligated by the Torah because it involved a positive action. Most Rishonim claim that the obligation is only rabbinic. Some (Rosh) say that garmi refers to cases of more immediate or more certain damage. Others (Ritzva) say that there are no consistent distinctions, but that the Rabbis decided to obligate a person in certain cases based on their prevalence or other factors. So rules the Rama (CM 386:3).
In our days, since much commerce is carried out “virtually,” cases of indirect damage are common. Therefore, it is possible that one would automatically have to pay in such cases, according to the Ritzva, irrespective of the arbitration agreement. However, so as not to rely on this opinion, we ask the litigants to agree explicitly to pay even in cases of g’rama, as beit din sees fit under the circumstances.
Even when there is no monetary obligation in g’rama, one is obligated to remove the damage. At times the Rabbis make him accept in advance that if his actions will lead to damages he will have to pay for them (see Bava Kamma 114a). All of the factors we have mentioned find expression in our decision to create an actual obligation to pay for g’rama in our arbitration agreement.
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