A Comparison of Chovel uMazzik and Early English Tort Law
James Filling
Introduction
Chovel uMazzik is a book within the Mishneh Torah. The Mishneh Torah is a large legal codex with grand authority, given that it was written by Moses Maimonides (1135 C.E. – 1204), one of the leading authorities of Jewish thought. Within the Mishneh Torah, there are fourteen books. Chovel uMazzik is within the eleventh book, Sefer Nezikim. Sefer Nezekim deals with what, in English, is most properly referred to as torts. There are eight sub-books within Sefer Nezekim, Chovel uMazzik is the fourth and it deals with injuries caused to one person by another.
The English system of law is a common law system, meaning that their law is largely shaped not only by statutes but also the interpretation of those rules by the judicial branch– decisions that the judicial branch make become the law in that they affect pursuant judgements. This remains relevant today because the United States is, to some extent, a common law system– one that arose from early English common law.
In spite of the many slight distinctions between Chovel uMazzik and early English tort law, the overarching reasoning behind either body of law is vastly similar with regards to the relationship between intent and liability. That is, it is possible to show that Jewish legal reasoning is present in early English tort law. Via the common law system, early English tort law serves as the foundation of contemporary tort law, meaning that Jewish legal reasoning is also present in contemporary American law. In other words, some of the same principles that shaped Jewish legal reasoning also shape contemporary legal reasoning in the United States. This is significant because it shows how the Christian world very much uses the Jewish legal tradition, which should inspire those interested in contemporary law of the United States to learn about the Jewish legal tradition.
Chovel uMazzik
Chovel uMazzik is divided into eight chapters with around twenty sections each. The focus here will be on the first chapter, as it explains under what circumstances a person is liable and the types of damages they are liable for. In expounding this chapter, the goal is to analyze the role that intent plays in relation to liability, as well as to compare Jewish law to early English tort law.
Chovel uMazzik 1.1
“When a person [damages] a colleague, he is liable to compensate him in five ways: the [injuries], his pain, his medical treatment, his loss of employment and the embarrassment he suffered.” (Maimonides)
Here it is listed the damages a tortfeasor1 may be liable for. It is important to note that both physical and non-physical damages are mentioned. It is also worth noting that a specific set of damages are listed out; it is not left to the lawyers, judges and juries to decide which sort of damages a tortfeasor may be liable for. This differs from early English tort law in that the judicial branch of early English law played a larger role in the process of figuring out which types of damages constitute a tort. For example, it took until around the fourteenth century to establish non-physical damages (Zipursky 11).
1.101
“A person who causes embarrassment is not liable unless he acts intentionally… If… a person embarrassed a colleague without intent, he is not liable. Therefore, if a person who was sleeping or the like embarrassed a colleague, he is not liable.” (Maimonides)
Here it is introduced for the first time that the absence of intent is an acceptable defense against accusations of having caused damage. Importantly, though, this section only mentions embarrassment, which should hint that the other four damages are not excusable through lack of intent alone– this is exactly what is seen in the next section.
1.11
“A man is considered [liable] at all times – whether acting intentionally or unintentionally, whether asleep or awake or intoxicated.” (Maimonides)
This section has strong consequences. It provides the basis for liability in the case that the damage in question was caused by accident. Of course, this does not extend to embarrassment– at least not directly, the following section explains how indirect intent leads to liability for embarrassment. It also gives rise to the idea of a proportional relationship between intent and liability: level of intent = level of liability, withholding that no intent =/= no liability.
1.12
“…whenever a person intentionally causes injury, he is liable for the embarrassment he caused, even though he did not have the intent of embarrassing the other person.” (Maimonides)
The relationship between intent and liability now begins to cover matters in which one of the damages was intentionally caused while the other damages were not. This section also introduces the idea that lack of intent should lead to lesser liability. For example, if a person does not intend to damage someone physically yet they do, they are held liable for less than the person who intentionally caused physical injury– to a certain degree, intent establishes the severity of liability. This idea is continued in the second half of the section.
“If he fell [off of a roof] because of an exceptional wind, he is liable only for the injury, but not for the other four assessments. If, however, he turned over so that he would fall on a person to soften the blow he would receive, he is liable even for the embarrassment he caused.” (Maimonides)
Building off of the earlier part of the section, the latter part of section twelve establishes that the intent to cause the action that leads to damages is just as convictive as the intent to cause damages. This is a subtle distinction regarding intent. It is possible to have differing intents to perform a given action because there are multiple consequences of certain actions. Regardless of which intent a person is operating on, the fact that they acted in a way that caused the other outcomes to occur makes them liable, if they were caused necessarily and not by chance. For example, a person is driving in the left most lane and knows there is a car immediately next to them in the lane to the right. The person’s breaks then stop working. Instead of choosing to veer left and use the side barrier as a brake, the person decides to veer right into the other car because it will do less damage to their own car. Although damaging the other car was not the intent, it is a necessary consequence of the person’s intent and they are therefore liable.
1.19
“When a person throws a stone, and afterwards another person extends his head out from a window and is struck by it, the one who threw the stone is not liable at all” (Maimonides)
So far, a lack of intent has not been an excusable defense. However, according to this section, a person is not liable if they are utterly without fault. This is paramount because an extremely similar defense is given by the English Common Court of Pleas in the case of Weaver v. Ward, which will be addressed shortly.
Recap
There are five types of damages: injuries, medical treatment, pain, loss of employment, and embarrassment suffered. A person is not liable for the embarrassment caused if they act unintentionally, however, a person becomes liable for embarrassment if they intentionally cause another damage. Behind this restriction of liability lies the idea that unintentional actions should be punished less than intentional actions (no intent= less liability). Nevertheless, unintentional actions still merit liability unless one is utterly without fault. Furthermore, one is considered to have acted intentionally even in the case that the consequence they intended for was not the injury but the injury is a necessary consequence of the action resulting from the action prescribed by their intent.
Early English Tort Law
Writ of Trespass Vi Et Armis
The writ of trespass vi et armis was first issued in the thirteenth century in England. The latin phrase “vi et armis” translates to “with force and arms”. The writ covers trespasses (i.e. wrongs against another) that involve the use of direct force (Zipursky 10). This is similar to Chovel uMazzik 1.1 in that it covers physical damages, yet different in that it only covers physical damages and does not explicitly state which resulting damages the tortfeasor is responsible for. It also fails to explicitly state whether or not accidents are covered by the writ.
Writ of Trespass on the Case
The writ of trespass on the case arose around the fifteenth century as a way to deal with situations that did not involve physical harm but still involved a wrong of some sort (Zipursky 11). This writ covers the non-physical trespassses not covered by the writ of trespass vi et armis. This writ together with the aforementioned writ combine to loosely form a similar version of Chovel uMazzik 1.1. This is the foundation of tort law, one that was built on by the judicial branch.
Weaver v. Ward
In 1616, two friends belonging to the military engaged in a training skirmish. Suddenly, and accidentally, Ward’s musket fired and Weaver was shot. Weaver brought against Ward an action of battery and assault under the writ of trespass vi et armis. In Ward’s defence, it was argued that Ward was engaging in lawful behavior that, by chance and without his intent, produced an undesirable consequence– therefore, Ward should not be held liable. The English Court of Common Pleas denied this argument on the grounds that the writ of trespass vi et armis covered cases in which there was no intent to cause damage (Zipursky 11). The court did, however, offer an acceptable defense: had Ward been able to argue that the accident occurred utterly without his fault, then he would not be liable. Ward would have had to argue that Weaver ran in front of the musket after it had fired– this would have excused Ward of liability. This is the same meaning as what is said in Chovel uMazzik 1.19 if “throws a stone” is replaced with “fires musket” : “When a person [fires a musket] , and afterwards another person extends his head out from a window and is struck by it, the one who [fired the musket] is not liable at all”.
Recap
There is not an explicit description of the types of damages considered to be torts in early English tort law. Instead, there are products of the judicial branch that regulate what does and does not qualify as a tort. Also, the idea that liability is proportional to intent is not present except in the case there lacks intent and the alleged tortfeasor is utterly without fault. Put more symbolically: [no intent] =/= [no liability] unless [no intent + utterly without fault]3.
Conclusion
Early English tort law and Chovel uMazzik differ sharply in their methodology of expounding the law. Chovel uMazzik establishes a set possibility of damages and the relationship that intent has to liability with regards to those damages, while early English tort law merely establishes that there exists physical and non-physical damages. In the English system, it was left to the courts to decide the relationship between intent and liability. The court decided in Weaver v Ward that the lack of intent on its own is not enough to excuse an alleged tortfeasor of liability. They did, however, establish that the lack of intent excuses one of liability if it is accompanied by the absence of fault. Remarkably, the same conclusion is reached in Chovel uMazzik. Jewish law and the foundation of law in the United States are similar, reading of one leads to learning of the other.
Notes
- Tortfeasor: a person who commits a tort (Merriam-Webster)
- Sections two through nine were omitted because they speak of the biblical justifications for the five damages, which are not relevant to the goals of this paper.
- ‘A’ does not equate to ‘C’ unless ‘A’ is modified by ‘B’
Works Cited
Maimonides, Moses. “Chovel UMazzik – Chapter One.” Translated by Eliyahu Touger, Chabad, 18 Jan. 2010, www.chabad.org/library/article_cdo/aid/1088908/jewish/Chovel-uMazzik-Chapter-One.htm.
Zipursky, Benjamin Charles., and John C. P. Goldberg. The Oxford Introductions to U.S. Law: Torts. Oxford University Press, 2010.
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Reflections 