AVOT NEZIKIN

AVOT NEZIKIN (Heb. אֲבוֹת נְזִיקִין; lit. "Fathers of Damage"), the classification of *torts. Certain passages in the Pentateuch (Ex. 21–22) have been expounded in the Talmud to form the basis on which tortious liability in Jewish law can be classified. The Mishnah (bk 1, 1) classifies the tort-feasors into four categories: ox, pit, grazing, fire. Basically, three sources of common danger – (1) animals, (2) pits, and (3) fire – have been developed as the principal categories of the talmudic law of torts.

1) Animals

The Talmud distinguishes between two kinds of damage that an animal can cause – habitual or common damage, termed shen, (Heb. שֵׁן, "a tooth") and regel (Heb. רֶגֶל, "a foot"); and unusual or uncommon damage, termed keren (Heb. קֶרֶן "a horn"). These terms are derived from instances of damage by animals referred to in the Torah (ibid.).

(a) shen and regel: the former refers to acts of damage caused by an animal while grazing, while the latter refers to acts of damage caused by an animal while walking, i.e., both occurring during the course of an animal's normal activities. The fact that shen and regel torts result from an animal's normal activities distinguishes them from keren – the abnormal, unexpected act of an animal, such as goring, biting, or kicking. In cases of shen and regel damage is presumed to be foreseeable and the owner is therefore required to take suitable precautions, and, if negligent, is held fully liable for the damage caused. However, such liability is limited in that it attaches only when the damage is caused on the premises of the injured party or in any other place not commonly frequented by the animal. When the damage occurs on the owner's premises, or in the public domain, or in any other place commonly frequented by animals, the owner is exempt from shen or regel liability on the grounds that he is entitled to expect that the injured party would take reasonable precautions to protect himself against such foreseeable risks. Furthermore, the owner is also exempt from liability where the damage occurs in a place which neither the animal nor the injured party commonly frequent, since the presence of either of them there (especially the injured party) was not foreseeable (bk, 14a).

(b) keren: this term covers an animal's unexpected, vicious acts; i.e., goring, biting, or kicking, as mentioned above. The ox was the popular beast of burden and thus was frequently encountered in public places. Its nature and propensities made it a common cause of damage and the term keren was extended to include all the unforeseeable acts of an animal. Unlike shen and regel acts, keren damage is not the result of an animal's normal behavior, and since it is accordingly unforeseeable the owner cannot be accused of negligence. On the other hand, keren is not so uncommon as to exclude negligence altogether and exempt the owner from liability entirely. In fact, keren was deemed to be midway between negligence and inevitable accident and the authorities differed as to whether it should be included as a tort of negligence or not. Whatever the viewpoint adopted, however, all agreed that the owner should be liable for half the cost of the damage caused – this being regarded according to the accepted opinion as a fine to encourage the owner to take greater care in preventing his animal from causing even unusual (keren) damage. The owner is exempt from all liability, however, where the injury caused by a keren act was completely unforeseeable, e.g., where his ox gored a pregnant woman, causing her to miscarry – this being an unexpected degree of damage (as far as the miscarriage is concerned). Similarly, the owner is not liable for acts of keren committed on his own premises – there being no negligence on his part – but such acts committed anywhere else, including the public domain, result in his being liable for half the damage caused.

This "half-damages" liability was deemed a charge on the carcass of the offending animal, so that the owner did not have to make up any shortfall. This was not interpreted, however, as implying that the animal itself was "liable," since the law is that a person who acquired an animal that had committed an act of keren while it was ownerless was exempt from the charge. The tannaim disputed the question whether the injured party's right was a lien on the carcass or created a part-ownership therein.

The first two times an animal commits an act of keren the damage is called keren tammah (i.e., caused by an animal considered harmless), but after the third such act (witnesses having duly testified to the facts before the court so that the owner was made fully aware of the position), the animal becomes mu'ad ("forewarned") and the damage is called keren mu'edet – the owner thereafter being liable for all further damage caused by similar acts of the animal, even if committed in the public domain. But the animal becomes a mu'ad only for the same kind of act, remaining a tam ("innocent") in respect of any other unusual act causing damage. For example, an ox mu'ad to gore other oxen is not mu'ad to bite a person; if he does, it is a tam with regard to that act unless and until it commits it three times as well. A mu'ad can be restored to the status of tam if it can be proved that it has ceased displaying the particular propensity that made it a mu'ad – although three further acts of the same kind would result in the status of mu'ad again. Wild animals are always regarded as mu'ad and their owners fully liable in all cases. After the talmudic period, keren liability, whether of the tam or mu'ad variety, was not enforced because of its rarity; instead, the owner of the offending animal was placed under a ban until he came to terms with the injured party (Maim. Yad, Sanhedrin, 5:17; see also *Damages).

(c) Ẓerorot (צְרוֹרוֹת; "pebbles"): this is the talmudic term for damage caused by an animal without bodily contact – the term being derived from the most common form of this type of damage, namely when an animal dislodges pebbles or the like which fall and break something. This category was extended to cover the case of a cock shattering a glass with the resonance of its crowing. Where ẓerorot damage is common, it is treated as a form of regel and where it is uncommon, it is treated as a form of keren. It appears that the Palestinian Talmud rendered the owner fully liable in the former case (regel), but only half liable in the latter case (keren; tj, bk 2:1, 2d). The Babylonian Talmud discusses whether the owner is fully or only half liable, but the dispute seems to center on whether ẓerorot is as common as regel. The halakhah accords with the view of Rava that in the case of common damage the owner is liable for half, while in the case of uncommon ẓerorot damage there is doubt whether he pays half or only quarter damages (bk 17b–19b).

(d) killing a human being: an animal which kills a human being, whether it is a tam or a mu'ad, is stoned to death. Some regard this as a punishment for the animal, while others are of the opinion that it is simply to eliminate a public menace. A third view is that, as an animal has no mind, it cannot be subjected to punishment and its execution is therefore a punishment for the owner. If the animal was mu'ad as a killer, its owner had to indemnify the victim's heirs (ibid., 41a), since he was negligent in failing to guard his animal properly. It follows, therefore, that such liability would not result from a killing that occurred on the owner's premises, as presumably there was there no negligence on his part (ibid., 23b).

2) Pit (בּוֹר, bor)

This is the name given to another leading category of tort and covers cases where an obstacle is created by a person's negligence and left as a hazard by means of which another is injured. The prime example is that of a person who digs a pit, leaves it uncovered, and another person or an animal falls into it. Other major examples would be leaving stones or water un-fenced and thus potentially hazardous. The common factor is the commission or omission of something which brings about a dangerous situation and the foreseeability of damage resulting. A person who fails to take adequate precautions to render harmless a hazard under his control is considered negligent, since he is presumed able to foresee that damage may result, and he is therefore liable for any such subsequent damage.

If the bor (i.e., the hazard) is adequately guarded or left in a place where persons or animals do not normally pass, such as one's private property, no negligence or presumed foreseeability can be ascribed and no liability would arise (bk 49b, 52a). Furthermore, no liability attaches to a person whose property became a public hazard through no fault of his and he had abandoned it, e.g., where by an inevitable accident a vessel breaks and the owner abandons the broken pieces, which subsequently cause damage (Rif, Halakhot, bk 29a, 31a) – just as a mere passerby is under no legal obligation to render harmless a hazard he happens to encounter. A person is not liable for a bor he creates if he could not have foreseen that it would not have been rendered harmless before it was likely to cause injury; e.g., where he digs a well in a public place and then entrusts it to the proper public authority (bk 50a), or where he is the part-owner of a well and he leaves it uncovered while it is still being used by his co-owner (51a–b). In these cases, the lack of any negligence absolves him.

One who commits the tort of bor is liable for foreseeable damage, but not for unusual or unforeseeable damage. Thus, if one digs a pit and leaves it uncovered in the daytime in a place where it is clearly visible, he would not be liable because persons or animals passing by are expected to be able to look where they are going. It is thought by most authorities that this rule also applies to cases where vessels are dropped into and damaged by the bor, since a similar standard of care is expected from those who carry such vessels (52a, 53b). Furthermore, no liability attaches in the case where a bor causes damage or injury to someone or something for whom or for which it would not normally be considered a hazard (48b). On the other hand, a bor that is not a hazard by day may become one at night, or may not be a hazard to big animals but one to young animals, who may not be so capable of guarding against such dangers. There would also be liability in respect of a bor that could only cause injury to human beings, but not death, as people do not usually pay much attention to such minor hazards (28b). If an animal dies from falling into a pit less than ten handbreadths deep there is no liability, for such a small pit is not normally expected to cause death (3a). Where two people create a bor jointly, or where one enlarges a bor created by another, each is liable for half the resulting damage – if liability attaches at all under the rules outlined above.

3) Fire (אֵשׁ, Esh)

The third leading category of tort covers damage caused by a hazard, such as fire, that can spread if not adequately contained or guarded. A person is liable for such damage if it is caused by his own negligence, but not otherwise. Accordingly, he is liable for damage caused by fire carried by a normal wind (which he should have foreseen), but not if the wind was exceptional (bk 60a). Similarly, he is liable if the fire spread over a foreseeable distance, but not if it spread further than could reasonably have been anticipated (61a–b). Yet another example given is the sending of fire or burning objects in the hands of an imbecile, for which the sender would be liable if damage resulted – but not if he sent a mere flickering coal, which is presumed harmless (59b). Thus the underlying rule is that the tort-feasor is liable for foreseeable damage – because he is negligent if he does not prevent it – but not where the damage was unforeseeable and thus no negligence was involved.

One who is negligent in guarding a fire created by him is only liable to the extent of foreseeable damage. For example, a fire that consumes hidden articles would not render the tort-feasor liable for them, whereas he would be liable in respect of exposed articles, damage to them being foreseeable. However, the tanna R. Judah extended the liability to cover hidden articles as well, on the grounds that it should have been foreseen that articles may have been hidden (61b). Some scholars interpret this discussion as being a question of evidence only, i.e., the acceptability of the plea that the articles have been there (Siftei Kohen to Sh. Ar., Ḥm, 388:6).

The Talmud records a dispute over the substantive nature of damage caused by fire, i.e., whether it is to be considered as damage caused by a person's property (ke-mamono) like damage caused by his animal, or as damage caused by the person himself (ke-gufo) as if he had shot an arrow. The difference is relevant in determining the measure of compensation, since higher damages are payable for damage caused directly by one person to another (ke-gufo). The conclusion seems to be that even those who consider esh to be a tort kegufo concede that sometimes it can only justly be regarded as a tort ke-mamono, thus incurring a lower measure of damages (bk 22a–b, 23a).

State of Israel

The Civil Wrongs Ordinance, 1944, makes no substantive distinction between liability for damage caused by animals or obstacles or fire and damage caused in other ways; in all cases there is liability if there has been negligence. However, if damage is caused by a dangerous animal or by a dangerous explosion or fire, the onus is on the possessor to prove that there was no negligence on his part.

bibliography:

Maimonides, Yad, Nizkei Mammon; Sh. Ar., Ḥm, 389–418; Gulak, Yesodei, 2 (1922), 227–37; et, s.v.Avot Nezikin, Esh, Bor, Hefker; S. Albeck, Pesher Dinei ha-Nezikin ba-Talmud (1965), 93–172.

[Shalom Albeck]