By Rabbi Yair Hoffman for the Five Towns Jewish Times

Mark Sokolich, the Democratic mayor of Fort Lee, New Jersey, has not had an easy time in life. He lost both parents by the age of thirteen, one after another. Finally, in high school he got a break. He made all-state on the basketball team and all-county in baseball, winning a number of scholarships. Unfortunately, he broke his ankle, and all the scholarships were withdrawn.

But Mayor Sokolich is more famous for being the recipient of major vengeance on the part of NJ Governor Christie’s team. Mark Sokolich did not endorse Governor Christie for re-election.

As punishment, it is alleged that Christie’s team ordered two of three access lanes in Fort Lee closed over five mornings, causing major upheavals.

It is better known as Bridgegate.

Bill Baroni, a former deputy executive director of the Port Authority is now on trial for helping orchestrate the act of revenge. His deputy, David Wildstein, has pleaded guilty earlier. Wildstein said he worked with Baroni and Kelly to block the lanes to send Mayor Sokolich a message.

The damage to Fort Lee residents was considerable. They sat in traffic for hours longer than they should have for five whole days.

The damage to Chris Christie was also considerable. Because of Bridgegate, Trump rescinded his offer of VP candidate to Governor Christie.

Our concern, however, is a matter of halacha. What would be the case if the issue was adjudicated in a Beis Din? Assuming that Baroni, and perhaps even the governor himself were to be found guilty, would they have to pay those who suffered damages?

OF BEIS DIN PAST

In the times of the Mishna, Jewish courts of law had the legal power to assess fines and judgments and handle all sorts of cases. However, historical forces have brought about numerous changes. One such change is that the Smicha that our judges once had is no longer in existence. Our courts of law, therefore, are just messengers of the courts of law that Torah Judaism once had (See Shulchan Aruch 1:1 and Rambam, Sanhedrin 5:8).

LIMITATIONS OF MODERN COURTS

The differences between modern Batei Dinim, courts of Jewish law and the courts of Jewish law that we once had are significant. Our courts of law cannot force judgments on those types of damages that are rare. Similarly, our courts cannot generally collect fines that are punitive in nature (SA CM 1:4). The issue of whether a particular type of payment is construed as a monetary payment or a punitive fine is often the subject of halachic debate. There are, therefore, two types of damage payments: There are those that are enforceable in a Beis Din and those that are non-enforceable in a Beis Din. The non-enforceable type can be sub-divided into two categories – Rare damages and those of a Punitive nature – that are categorized as a fine.

FIVE CATEGORIES OF DAMAGE

The Talmud lists five categories of damages that were once generally payable:

Damage, Pain, Embarrasment, Medical Expenses and Loss of Income

Nowadays, if a person damaged another person bodily, we do not enforce payment on Damage, Pain, and Embarrassment. Why is this so? Generally speaking, bodily damage that actually does harm is a rare thing. Pain and embarrassment, however, are not enforceable because of another issue – they do not involve monetary losses.

What about the other two? Many authorities do rule that a court of Jewish law can enforce payment for the categories of Medical Expenses and Loss of Income (CM 1:2).

While there are numerous differences between our contemporary courts and those in Talmudic times, if a person does damage another, the damages are generally payable in a contemporary Bais Din (CM 3:1). This is true whether a person has damaged the other’s animal, property, or, in some instances, his actual person.

RARE DAMAGE

What might be an example of a rare damage? Some authorities hold that one human being striking another and damaging him is an example of a rare form of damage (Rambam).

Causing gridlock through purposeful lane closures might be considered rather rare.

MITZVAH TO PAY EVEN WHEN NON-ENFORCEABLE

It is also interesting to note that while our Jewish courts cannot collect on judgments for damages that are rare – there is still a Mitzvah in the Torah that it is incumbent upon the one who damaged to pay the victim even though it is no longer a damage for which payment can be enforced in a Jewish court of law.

The verse in Shmos (21:34) states, “The owner of the pit shall surely pay..” The Ramban (Bava Basra 175b) rules that this verse is a Mitzvah incumbent upon the one who damages regardless of whether a Jewish court of law is empowered to collect the damages or not. The Ktzos HaChoshen (39:1) cites this Ramban as authoritative Halacha.

The obligation to pay for damages even one that is not fully enforceable is a greater obligation that a fine-based obligation . How so? A fine is only imposed when a Beis Din finds that the person is guilty. But when one has actually damaged – then the payment is monetary in nature as opposed to punitive and is worse (See Chidushei haRim cited in Pischei Choshain 10:9).

CENSORING

A Bais Din can also severely censure a damager who does not make restitution to the one who was damaged and does not appease him. If the damager paid the victim an amount that the Bais Din deems to be sufficient, then the censure is removed even if the victim was not appeased (See CM 1:5).

WHEN THE VICTIM TOOK HOLD OF THE FUNDS

If the person that was damaged took hold of an item belonging to the one who damaged him and it was a type of damage that is not enforceable, the victim may keep the item. There is an opinion that the damaged party can even ask the Bais Din to appraise the damage in order to determine how much the damaged party can take hold of (See Tur 404).

PAYMENTS THAT ARE ENFORCEABLE

Another type of enforceable damage is the issue of Moser – when a person improperly informs upon another Jew to the authorities, when an unfair law has been levied (See SA CM 1:4). The damage that the informer had caused against the victim is recoverable in a modern Bais Din.

There is another type of damage which is considered enforceable. This is an indirect form of damage called “Garmi.” A Garmi is when an indirect form of damage results is viewed as a clear, present and highly likely result. If Reuvain were to rip up Shimon’s train ticket, for example, that is a Garmi form of damage. If Reuvain were to poison Shimon’s dog by placing a poisonous food next to him, this is considered Gramah not Garmi. It may very well be that Shimon’s animal will not eat the food. Garmi damages are enforceable in a Bais Din. Gramah damages are not.

When payment must be made, he is obliged to pay these damages with the best of his fund (See SA CM 389:2). If he had properties with a lien on them, the damaged party may collect from those properties as well.

The damage is evaluated at the value that existed at the time that the damage happened (See Tur CM 404). It is also in accordance with the damaged at that time. The damages are arrived at by subtracting the value of the item before it was damaged with the value of the item after it was damaged. The broken item is given to the victim and the damager pays him the cost of the damage (See CM 387:1). Some are of the opinion that the damager is obligated to pay for the repair of the item, if the victim so desires (See Shach CM 95:18).

Loss of Use is only applicable when a human being damages another person, but not when an animal or an item is damaged.

SHLIACH LIDVAR AVEIRAH

There is a concept in the Talmud (Kiddushin 42b) known as “ain shliach lidvar aveirah – there are no messengers when doing a sin.” The rationale for this is “Divrei HaRav v’divrei HaTalmid – divrei mi shomin? When you have the command of the Master and the command of the student – to whose words do we listen? Thus, only the messenger would be liable.

Generally speaking, this concept would exonerate those in the upper chain of communication in what is now known as “Gridlockgate.” But a gentile is not commanded in the 613 Mitzvos of the Creator. That being the case, the logic of “Divrei HaRav – the Command of the Master” would not necessarily apply to him (Yam Shel Shlomo BK 10:50). Even though America’s legal system would certainly proscribe the vengeful act of closing off a bridge merely because a city’s mayor did not endorse a candidate – the fear of the law, apparently, is not tantamount to the fear of Heaven.

LESSON

There is a great lesson here. Our fear of heaven should clearly be above the fear of the law of the land. This truth is so evident that its veracity applies to all peoples. After Yom Kippur and all of the Yomim Tovim are now past, we must certainly do what we can to observe all of Hashem’s laws most meticulously. The Talmud tells us that one of the first questions that the soul is asked after it departs from this world is, “Did you conduct your business affairs with honesty?” This question is asked even before the question of having set aside Torah study.

The author can be reached at [email protected]