August 7, 2018


Parshat Mishpatim is the primary source of Jewish tort law and it is where we learn about the four Avot Nezikin (primary forms of damages).

According to the Mishna (Bava Kamma 1:1), the four Avot Nezikin are a shor (an ox), a bor (a pit), a mav’eh (a person who causes damage) and hev’er (fire), and as the Gemara goes on to explain, each has unique features. Given this, we are taught that these four cases are the blueprint for establishing matters relating to responsibility and cost for damage in all cases.

For example, when discussing damage resulting from fire, the Torah informs us that ‘If fire gets out of control and spreads through weeds, … the one who started the fire must make restitution’ (Shemot 22:5). Clearly, from here we learn that fire damage is the responsibility and must be paid for by the one who caused the fire, and it is in the Gemara that further questions are addressed such as what is the law when a fire causes more damage than one would expect, and what is the level of liability when an individual fails to guard what could be a fire risk?

Still, these laws as found in the Torah and elucidated in the Gemara and halachic codes, seem a far stretch for most of us. In fact, some may even say that we need a new set of tort law for the needs of our time.

However, this would be a mistake, because ever since the time of the Gemara, halachic analysis – both in the codes but specifically in responsa – has demonstrated how the Avot Nezikin continue to serve as a basis for damages emerging from developing technology.

A great example of this is a fascinating responsum by Dayan Shlomo Deichovsky, originally published in Techumin Vol. 22, exploring the responsibility of someone who sends a computer virus to another, where he writes that ‘a virus … is comparable to fire. Its creator is like one who ignites a fire [and] the one who sends it – even if he received it from somebody else – is comparable to one who fails to guard the burning coal that is in his possession.’

Given this, Dayan Deichovsky continues to explain that ‘hence, the total amount of compensation which it is possible to demand from one who spreads a virus is the amount necessary to fix the computer’s system – software and hardware alike.’

To my mind, this ruling – which is just a short and simplified snippet of a longer essay on ‘The Internet and Halacha’ – is a perfect example of how our classic Jewish sources not only can be used to solve contemporary halachic challenges, but how they are – in a way that is hard to fully fathom – almost perfectly suited to do so.

The world continues to generate new challenges that poskim (halachic decisors) have a duty to solve, and the above is a great example of how careful attention to our classic sources as interpreted and applied to contemporary situations by bold and creative poskim like Dayan Deichovsky can generate answers that are both suitable for our time and reflect the spirit and values of Torah.

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