Gerama and Garme
GERAMA AND GARME
GERAMA AND GARME (Aram. גְּרָמָא, גְּרָמֵי), terms variously used in the Talmud to describe tortious damage caused indirectly by the tortfeasor's person. The following acts are examples cited of garme damage: a judge delivering an erroneous decision resulting in damage to another; burning another's bond – thus preventing him from recovering his debt; a banker giving an erroneous valuation of coins – causing them to be acquired at a loss; damaging mortgaged property held by a creditor – thus reducing the value of his security; informing on another's property to bandits – thus causing them to take it away. Opinion is divided in the Talmud over the question of liability for this kind of tort (bk 98b; 100a; 117b); some of the sages maintain that liability does exist, while others exclude it. In other cases – similar to those cited above – the damage is termed gerama (bk 48b; 60a; bb 22b), but here liability is excluded. Examples of gerama damage are placing a ladder by a pigeon loft, enabling a weasel to climb up and eat the pigeons; setting a fire by means of the wind resulting in a conflagration; allowing an animal to trespass onto another's land, where it falls into a well so that its corpse pollutes the water. Other cases which were later interpreted as gerama are bending the stalks of grain in another's field toward an approaching fire so that they catch fire; placing poison in the path of another's animal, causing it to eat this and die; sending a burning object through a minor or an idiot, who is irresponsible and thus causes damage; inciting another's dog to bite a third person; frightening another to the extent that he suffers injury or damage from such fright; leaving a broken vessel on public ground so that the pieces cause injury (bk 24b; 55b–56a). Even the earliest of the post-talmudic commentators found difficulty in explaining the difference between gerama damage, for which the Talmud does not impose any liability, and garme damage, for which talmudic opinion differs as to whether there is liability or not. According to Rashi (to bb 22b, s.v.gerama; see Sh. Ar., Ḥm 386:4), there is no difference between the two concepts – and that those sages who exclude liability for garme damage also exclude it in cases of gerama damage, and vice versa. Some of the tosafists maintain (bb 22b, s.v.zot omeret) that, indeed, in strict law there is no distinction and that there is no liability in either case – save that the more common injuries are called garme and that those sages who impose liability for garme damage do so in the sense of fining the tortfeasor for the sake of public order. However, according to the majority of the tosafists, all indirect damage that is an immediate result of the tortfeasor is termed garme, whereas all other acts of indirect damage are called gerama – in respect of which the sages are unanimous in excluding liability. There are also further distinctions between gerama and garme damage, which all present difficulties and which are all less acceptable. It appears that the two categories can be distinguished by using gerama to refer to indirect damage that is too remote to have been foreseeable, and garme to refer to indirect damage that should have been foreseeable – but which was caused solely by the independent act of a second person who acted negligently following the first person's act, while he could have refrained from doing that which resulted in the damage. In the latter situation, some sages maintain that the first person is exempt from liability, even though he could have foreseen that his act would result in the negligent act of the second person – who is held to be solely responsible. On the other hand, others hold the first person liable, just because he should have foreseen that his own act would result in the negligent act of the second person. According to this distinction, therefore, the loss sustained by someone acting on the advice of an expert is garme damage – because he should have realized that other experts should be consulted before he acted on one expert's advice and he was himself negligent in failing to take such second opinions. If, however, the matter is such that only one suitable expert is available and there is no choice but to rely exclusively on his advice, it is not a case of garme damage, and it is the unanimous opinion that the expert is liable for the consequences of his negligent advice. The halakhah is that a person is liable for garme damage, although it is disputed in the codes whether such liability stems from the strict law or is in the nature of a fine for the sake of public order, as mentioned above. The law applicable in the State of Israel is the Civil Wrongs Ordinance, 1947, which makes a person liable for the natural consequences of his conduct – but not if the decisive cause of the damage is the fault of another. An expert is held liable for giving negligent declarations and opinions.
Compromise When Payment for Damages Cannot Be Imposed under Tort Law
In recent decisions of rabbinical courts, when damages are of the gerama type, i.e., the tortfeasor is only guilty of causing the damage indirectly, and as such damage, there are insufficient grounds for the submission of a legal action. Since no action can be filed for damages classified as gerama, no monetary liability can be imposed by the court. Accordingly, the court has on occasion taken the path of compromise in order to effect monetary restitution. This approach has been adopted in other instances as well in which no demand for payment can be imposed under law, such as when there is only liability under Divine law (see *Divine Punishment) or when the damages involve the violation of a negative commandment but do not suffice for the imposition of a monetary liability, such as fraud in the payment of an employee's wages. In such cases, the rabbinical courts, through the use of a compromise settlement, ensure that justice is done when the strict letter of the halakhah itself provides no relief. (See, e.g., decisions of the Rabbinic Court for the Kiryat Arba-Hebron District, vol. 1, 205 and index; Rav. Z.N. Goldberg, "In Praise of Compromise," Mishpetai Ereẓ, 2002 (Heb.); see *Compromise.)
The Requirement to Terminate the Damage
Even when the damage is only of the gerama type and no monetary liability can be imposed under law, it is nonetheless incumbent upon the tortfeasor to terminate the damage in the present and to prevent its recurrence in the future. Thus, the *Rema rules (Sh. Ar., Ḥm 386:3) that a ban (see *Herem) should be imposed on the person causing the damage until he terminates the damage, and R. Jehiel Michael Epstein rules similarly: "Whatever measures the tortfeasor is able to take to save him [i.e., the one who sustained the damage from continued or similar damage] from this point on he is obligated to take, and to rectify that which he perverted; and he should be forced to do so with all means of force until he removes the [source of] damage. And this is the law regarding every gerama in the laws of damages" (Arukh ha-Shulhan 386:19).
In the course of adjudicating a suit between spouses regarding the determination of the level of maintenance that a husband was required to pay his wife, the question arose as to whether the fact that she did not rent out the apartment she owned, thereby precluding potential income from rent, should be considered as causing financial damage to her husband (Judgment 325/2/2021, 5 pdr, 279; see *Maintenance). The Rabbinical Court ruled that the wife cannot be obligated to pay for that damage as it belongs to the category of gerama. Nevertheless, the bet din stated that the husband may delay payment of maintenance until she rents out the apartment, as even in an instance of mere gerama, the person causing the damage is responsible for removing the source of the damage (p. 283 of the ruling).
Liability According to Divine Law and the Seizure of Property by the Injured Party
Further on in the above ruling (p. 284), the bet din considered the possibility of permitting the husband to withhold maintenance payment according to the rate of the damage she was causing him by not renting out the apartment, in view of the fact that the husband was actually in possession of the maintenance funds. Despite these being damages of the gerama type, the exemption from liability for payment of damages is only under human law, while liability does exist under Divine Law (*Divine Punishment). In such cases, the halakhic authorities were divided as to whether to permit seizure of the tortfeasor's property by the injured party as an alternative to the payment of damages. According to some authorities, such seizure is invalid (Resp. Ribash §392), notwithstanding that the court is required to inform the tortfeasor of his liability under Divine Law (Yam shel Shelomo, bk 6:6). Contrary to that opinion, Ran and Rashba consider such seizure valid, and the bet din cannot confiscate the property seized by the injured party (Nimmukei Yosef, bm 28a; Hiddushei R. Akiva Eiger, Sh. Ar., Ḥm 28:1). The rabbinic court ruled that in the case at hand the seizure is effective, due to the existence of an obligation under Divine Law based on gerama damages. Consequently, the husband may deduct the amount of those damages from the alimony he owes to his wife.
DISTINCTION BETWEEN GERAMA AND GARME – CONSIDERATIONS OF APPROPRIATE POLICY
The distinction between gerama and garme, as well as the implications of that distinction for dealing with the subject today, arose in the case of Mifalei Te'urah (cf [Jer] 2220/00, Mifalei Te'urah v. Israel Postal Authority). The question adjudicated was whether a party could be obligated to pay compensation for the prevention of future profits. In the case at hand, the Postal Authority published a tender for the production of mailboxes. A company that did not win the tender sued the Postal Authority, claiming that it had been prevented from winning the tender owing to flaws in the tender in terms of compliance with the equality requirement under the laws governing tenders. The company sued the Postal Authority for the amount of the anticipated profits that had been denied it by its loss of the tender.
The Jerusalem District Court (Judge Moshe Drori) ruled that under Jewish law compensation is not awarded for this kind of damage, being an instance of gerama: "One who negates [i.e., blocks profit from] another's purse, he [the injured party] has no [claim] against him but angry objection" (tj, bm 5:3). Halakhic authorities explained this exemption as deriving from the classification of the damages as gerama (Piskei ha-Rosh to bk 2:6; Resp. Maharam §821).
Nevertheless, the court ruled that the Postal Authority should in fact be held liable for payment of damages, relying on the view of Rizba (Tosafot, bb 22b, s.v.zot omeret gerama binzikin asur, and see above) who declared, regarding damages considered garme, that "Our Sages of blessed memory levied a fine for any damage that is common and occurs frequently." The reason that they levied these fines was so that people would not go and cause deliberate damage to others and rely on their exemption from liability. (See *Fines.) The court ruled, that since the case involved a public body, as a matter of legal policy it should be declared that the damages in question are "common and occur regularly," thus precluding the possibility of any branch of government ignoring the laws of equality in public tenders and thereby causing damage to a bidder who would otherwise have won the tender (paragraphs 98–99 of the ruling).
The court relied on comments made by Rabbi Aaron *Lichtenstein regarding the distinction between gerama and garme. In his view, while Maimonides' approach in his treatise on garme is to create widely inclusive distinctions between instances that fall under the definition of gerama, with no liability for payment of damages, and those that we may consider instances of garme, in which there is such liability, the Rizba's approach is fundamentally different. In the Rizba's understanding, one should not look for a distinction in principle between the law of gerama and that of garme other than that in the cases that are considered garme, regarding which there is liability for payment of damages, "the Sages felt there was a specific social need to establish liability," because these were instances in which failure to impose liability for damages payment would have negative socio-economic ramifications. According to this approach, the distinction between gerama and garme is not a "scholarly" distinction originating in the intricacies of talmudic learning, but rather a "practical" distinction from the mundane world, even though it is understood that the decision regarding when to establish liability for payment is based on considerations of values and ethics and not merely on pragmatic convenience (Shi'urei R. Aharon Lichtenstein – Dina de-garmei [1999/2000], 198–99).
Using this methodology, the court ruled, as stated, that in a case in which a governmental body treats parties unequally, a legal policy should be established whereby the body is obligated to pay anticipated damages, with the case being treated as one of garme and not of gerama.
The court further cited Rabbi Lichtenstein, who states that in practice, in the modern era, with its economic, scientific, and technological developments, the social need to regard cases of indirect damage as garme and not gerama is constantly growing. Lichtenstein suggests that decisors of Jewish law take the step of enacting a takkanah, in accordance with the needs of the world of modern commerce, economics, and technology, defining many sorts of damages as garme, making the one who inflicts them liable for payment for such damages, in keeping with the Rizba's outlook, and this would also "bring the Torah greater repute" (ibid., 200).
In addition to the aforementioned, the court suggested other ways in which support can be found for imposing liability under the laws of gerama in such cases. One manner of doing so is by invoking the principle that an obligation be imposed upon the public, even when no basis can be found for it in law, in order to uphold the general requirement of "and you shall do that which is right and good" (relying on Resp. Hatam Sofer, 2, yd 239). Another way would be, as discussed above, to rely on the fact that there is liability under Divine Law and since causing indirect damage is forbidden, this prohibition may be enforced upon the public as opposed to an individual.
It should be noted that, at the end of his ruling, Judge Drori emphasizes that, according to the Foundations of the Law 5740 – 1980, the court is obliged to apply the principles of Jewish law, even if it does not apply all its particular distinctions. In light of this, the court is required to apply Jewish law in a way that brings about desirable results. In the case at hand, this means educating public servants to apply norms of fair governance. Accordingly, we should aspire to subject the public body to a duty of compensation for future damages as well, even when the damage is defined as gerama, in cases in which the authority prevented a person from achieving monetary gain as a result of its failure to comply with the principle of equality (paragraphs 101–194 of the ruling).
Evidentiary Damage and the Law of Garmei
The modern legal system recognizes the doctrine of "evidentiary damage," i.e., causing harm by damaging evidence that might be beneficial to the opposing party. Under Israeli law, there may be instances in which causing evidentiary damage shifts the burden of proof to the side that caused that damage, and there may even be instances in which one may file direct suit for compensation for evidentiary damages (ca 1171/00, Cohen v. Kaplan Hospital, 2 psm (5762) 298, Judge Neal Hendel). In adjudicating a compensation claim for damages by reason of medical malpractice – viz. the hospital's failure to properly preserve medical records – the Beer Sheva District Court addressed the close similarity between evidentiary damage and the law of garme:
"The talmudic tractate Bava Kamma discusses the case of one who burns a note belonging to another person. In Rava's view, he is not liable to punishment, 'for he said to him, 'It is only paper that I've burned'' (bk 98a). According to this position, it is only paper that has been burned, and the one who did so has no liability beyond that. Maimonides rules against this position: 'One who burns the notes of another is required to pay the entire debt that was represented by that note, for although the physical note is not money, he caused the loss of that sum of money' (Yad, Hilkhot Hovel u-Mazik 7:9). In other words, evidentiary damage is equivalent to actual damage. In the words of R. Joseph b. Haviva, one collects from the person who burned the entire debt attested to by the bond, 'for he caused him to suffer a loss' (see Nimmukei Yosef to Hilkhot ha-Rif, bk, Ch. 9, 35:1)."
The court goes on to cite R. Aharon Lichtenstein (Dina de-Garme, 61–62), who writes that, in practice, the burning of the bond has no effect, positive or negative, regarding the financial obligation to which the certificate itself attests. The only thing that burning it accomplishes is to cause its owner difficulty in proving the existence of that obligation, at the evidentiary level. Thus, one may see a close similarity between the modern doctrine that recognizes evidentiary damage and the principle of garme.
[Menachem Elon (2nd ed.)]
Gulak, Yesodei, 1 (1922), 157; 2 (1922), 24, 182, 206–9; 4 (1922), 162f.; Herzog, Institutions, 2 (1939), 311 (index), s.v.; et, 6 (1954), 461–97; 7 (1956), 382–96; S. Albeck, Pesher Dinei ha-Nezikinba-Talmud (1965), 43–61; B. Cohen, Jewish and Roman Law, 2 (1966), 578–609, addenda 788–92. add. bibliography: M. Elon, Ha-Mishpat ha-Ivri (1988), 1:195, 330; ibid., Jewish Law (1994), 1:219f, 396; M. Elon and B. Lifshitz, Mafte'ah ha-She'elot ve-ha-Teshuvot shel Hakhmei Sefarad u-Zefon Afrikah (legal digest), 2 (1986), 295–96; B. Lifshitz and E. Shochetman, Mafte'ah ha-She'elot ve-ha-Teshuvot shel Hakhmei Ashkenaz, Zarefat ve-Italyah (legal digest) (1997), 205; A. Lichtenstein, Dina de-Garme (2000); M. Drori, "Causality in Jewish Tort Law: Implementation of Principles in Israeli Public Law," in: Tehumin, 26 (2005).