Volume 1
The Jewish encyclopedia : a descriptive record of the history, religion, literature, and customs of the Jewish people from the earliest times to the present day / prepared ... under the direction of ... Cyrus Adler [and others] Isidore Singer ... managing editor.
- Date:
- 1901-1906
Licence: In copyright
Credit: The Jewish encyclopedia : a descriptive record of the history, religion, literature, and customs of the Jewish people from the earliest times to the present day / prepared ... under the direction of ... Cyrus Adler [and others] Isidore Singer ... managing editor. Source: Wellcome Collection.
209/752 (page 161)
![161 THE JEWISH ENCYCLOPEDIA Accident Accommodation i hayricks need not be paid for by one that starts a fire; I but such a' one is liable for the furniture in a house I and, it would seem, for the goods in a shop; for things of value are expected to be deposited in a i house, but not in a field (Maimonides, l.c., xiv. 12). When a spark is emitted from a hammer and does : damage the striker is liable. “ When a camel laden with flax passes along the highway, and Indirect the flax, being pressed into the shop, I Liability, catches fire from a lamp of the shop- keeper, and the house is burnt, the owner (bn'al) of the camel is liable ” (B. K. vi. 6). Here is shown the kindling of a fire treated as dam- age arising from the ordinary walk of an animal; for it is not the driver, but the owner, of a camel on whom the blame is laid. Maimonides declares him liable because the camel was too heavily laden. But I when the shoi)keeper leaves his lamp on the outside, I he is liable to the owner of the llax. The above- mentioned passage of the Mishnah is remarkable for the closing words (which are, however, not good I law): “R. .Judah says, when it is the Hanukkah i lamp, he is not liable, ” for this happens to be the only I mention made of the Hanukkah lamp in the whole I compilation known as the Mishnah. Other cases are discussed in the Mishnah, such as I the aggravation of “ pit ” and “ fire, ” when occurring I on tlie ground of the injui’cd party or on the com- mon ground of injurer and injured. ; From the Scriptural phrase “ the ox of his neighbor” the principle is drawn that damages for negligence can not be exacted where the thing injured belongs to a lieathen, or is consecrated property, or res nuUii/fi, such as the estate of a convert djing without issue. I Tlie term mii'ad (“witnessed against” or “fore- I warned ”) is derived from the case of the goring I ox in Scripture (Ex. xxi. 29), extended by tlie Jlishnah to those agents who, without any proof of former viciousness, are held responsible for any I damage that they inflict. Thus, as already stated, a human being is mu'ad whether acting wilfully or I unwittingl}', whether awake or asleeji; if he blind his neighbor’s ej'e or break his implements, he must pay the full damage. But the word nezek for damage must be here taken in the narrow sense : of depreciation; for the one that unwittingly or unwillingly inflicts a personal injury is liable for the lasting injury onlj’-, not for the four other causes of damage—pain, loss of time, cost of cure, and disgrace—for which the wilful assailant must an- swer (Maimonides, Z.c.,xliii. 1-5; “Hobel,”i. lletseq.). Such animals as a wolf, a lion, a bear, a panther, a leopard, and a serpent are held to be always vicious, and their owner is consequent!}' “forc- I warned ”; the exception sought to be made in favor of such animals, when tamed, is disallowed by the ' majority (B. K. i. 4). With the exception of the ransom which the owner of the “ forewarned ” ox has to pay in certain cases for a man or woman killed by Value of a the beast—this being demanded by Human the very words of Scripture—no coii- Life. pensation is ever paid for causing the death of a human being; for the idea of I atoning by money for the loss of human life was ab- ‘ horrent to the Hebrew mind. This rule was applied even when a slave was killed by an Accident; wherein the Talmud differs from the Roman law, wliich says , only liber homo nvllius est •pretii (a freeman can have I no valuation put upon him). It is only since Lord i Campbell’s Act, in 1846 (9 and 10 Vic. c. 93), that the '< English common law has allowed compensation for ! the death of persons by negligence. The master of a slave is not liable for the torts done by him, even I.—11 to the extent of giving him up in compensation for them; nor is tlie husband bound for the torts of his wife. But should the slave be manumitted, or the woman be divorced or become a widow, he or she may be sued for the damage done during sla- very or coverture. Deaf-mutes, insane persons, and minors (boys not over thirteen) are not liable for their own torts, while other persons are liable to them or to their representatives (Mishnah B. K. viii. 4). The maxim of the Roman and the English law, qni facit per alium facit per se (he who acts through another acts of himself), hasitsequiva- Legal lent in the ])hrase of the Talmud, “ A Status of man’s agent [literally,” messenger ”J is Agent. like himself”; and this should lead to the master’s liability for the acts of his agents and servants (not slaves), which in modern law is the most important point in the law of negligence. On the contrary, the iMishnah says, when one de- livers his cattle to an independent herdsman, the lia- bility devolves on the latter. But where the offend- ing beast has been entrusted to a person unfit to care for it, such as a deaf-mute, an insane person, or a minor, the owner is liable for all mishaps, as if he had retained personal control (B.K. vi. 2). While full damages are held a personal debt of the owner, half damages are to bei)aid only “from the body ” of the offending animal. The law in Exodus says: “They shall sell the live ox, and divide the money of it; and the dead ox also they shall divide” (E.x. xxi. 3.5). The old sages showed how this law, when literally enforced, might often work hardship, as when a worthless steer or he-goat .should kill a valuable cow, worth more as a carcass than her living slayer; hence they deduced their own rule. The owner in such cases pays half the damage, but only as far as the animal causing the injury will satisfy it. This corresponds to pauperies of Roman law, by which, however, slaves as well as animals can be surren- dered in satisfaction for any harm done by them; and it finds an analogue in modern maritime law, in which the liability of the ship-owner is in most cases nar- rowed down to what can be realized upon the ship. The rule that half damages are always paid “from the body” only, has one exception, known as that of “ the pebbles ” and referred to above. Full damages are deemed to be of the nature of a debt, and may therefore be adjudged upon the wrongdoer’s admission; half damages arc regarded in the light of a penalty, and can only be adjudged on the testimony of witnesses, as in prosecutions for crime. But all appraisement of either full or half damages must be made by a court of experts; that is, on the judgment of ordained judges, not of pri- vate men chosen by the parties. Hence, when all semblance of ordination had come to an end the Jew- ish rabbis could no longer adjudge these damage cases except by way of arbitration, conciliation, and religiotis advice; consequently the later practical codes, like the “Shulhan ‘Aruk,” are silent on the whole subject. For the rules by which a tame animal becomes “ fore- warned,” together with the liability of its owner for the death of human beings, see Goring Ox. L. N. D. AGCO, ISAAC. See Isaac ben Samuel of Acre. ACCOMMODATION OF THE LAW: An adaptation of laws to circumstances; the mitigation of the rigor of a law in order to reconcile it with the exigencies of life under changing circumstances. Cases of accommodating the law to existing condi-](https://iiif.wellcomecollection.org/image/b29000488_0001_0211.jp2/full/800%2C/0/default.jpg)
