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Shabbat Parashat Vayigash 5772

P'ninat Mishpat: Educational Violence? part III Damage Incommensurate With the Blow

(condensed from Hemdat Mishpat, rulings of the Eretz Hemdah-Gazit Rabbinical Courts)

Case:   The defendant (=def), a teacher and respected member of a community, found two boys, including the plaintiff (=pl), in a heated argument. Pl threatened to hit the other boy, who told def that pl had already hit him. Def demanded that pl leave the area. After pl refused several times, def shoved him. Pl, who it turns out, had surgery on his inner ear a week earlier, sustained damage to his ear as a result of def’s rough contact and required substantial medical care. Pl and his parents demand payment for direct and indirect expenses and for pain.


[We have already demonstrated that beit din is able to levy damage payments and that def did not have a right to resort to violence for educational purposes. The final question is whether def can be responsible for damages that are uniquely connected to an unnoticeable weakness in pl.]


Ruling:    The gemara (Bava Kama 62a) says that if one told a watchman: “Be careful with what I am giving you; it is made of silver,” and, in fact, it was made of gold, and he directly damaged the object, he is responsible to pay for the full value. This is in contrast to a case where damage happened by itself under his watch, in which case we say that he did not accept to watch such an expensive object. In the case of direct damage, we say, “What made you damage it?” In other words, when the damage was done by a forbidden act, it does not make a difference if the damager understood the extent of the damage he was doing.

There is a concept of estimating the severity of damage one can expect from the actions of a damager. Based on this, the Shulchan Aruch (Choshen Mishpat 420:28) rules: “If he hits his counterpart with a small stone that is insufficient to cause damage…, and he caused a damage that this object is not fit to cause, he is exempt, as the Torah says: ‘…with a stone or a fist’ (Shemot 21:18), i.e., something that is fit to damage.” We might claim that the shove that def gave pl was not fit to cause damage to an ear under normal circumstances.

However, the matter of estimation relates to the specific person who was damaged, with more damage expected to a weak victim than to a strong one (Rambam, Rotzeiach 3:5; Yam Shel Shlomo, Bava Kama 8:38). The Yam Shel Shlomo explains that the exemption is based on the rationale that if a surprising damage occurs, we attribute it to, “Satan instigates at the time of danger,” and not to the actions of the damager alone, and we exempt him based on extenuating circumstances. In order to attribute the matter to “Satan,” it is necessary for the damage to be unexpected even considering the victim’s frailties. In this case, given pl’s surgery, it is not surprising that he was injured. Although def was unaware of that situation, since he had no right to be violent, he is responsible for whatever damages ensued.

Beit din informed the sides that def should pay for damages, but that since the main basis for making such a ruling is for the need for the damager to appease the damaged, they should come to a settlement that appeases pl and his family. The sides, with beit din’s mediation, indeed reached agreement.


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