LIABILITY (Torts). Every person of full mental capacity, male or female (BK 15a), when causing injury to another person, is liable to the injured party for any damage which his negligent conduct causes the latter to suffer (see torts ), even a husband to his wife (BK 32a). A person who lacks mental capacity – such as a deaf-mute, idiot, or minor – is exempt from liability for damage caused by the act of his person because he is incapable of foreseeing damage, whereas the injured party is required to take care, for most people know that one must be on guard against a person lacking in understanding as he tends to cause damage. For this reason too the latter's guardian or parents are not liable on his behalf (BK 87a). A principal who commissions an agent to commit a tort is exempt from liability, but the agent is liable, for the latter, having discretion, should foresee resulting damage, whereas the principal cannot be required to know that the agent will carryout his evil mandate (Tos. to BK 56a; 79a). Where, however, the agent cannot foresee that the damage will result from the carrying out of his mandate – as in the case of an agent lacking mental capacity, or an animal incited by the principal, or in a case where the agent could not have known that he was doing wrong because, for example, the principal told him to fetch a chattel for him telling him that it was his – the agent is no more than a tool in the principal's hand, and the latter is liable for the damage caused by the agent (loc. cit.; BK 9b). Where the principal himself could not have foreseen that the agent would cause injury in carrying out the mandate, he too is exempt from liability, as in the case where he puts a glowing coal in the hands of a minor, who burns another's article (BK 59b). If a slave, having full mental capacity, causes injury, the sages exempt his owner from liability – although he knows that slaves are in the habit of causing injury yet retains him despite the fact that he is unable to guard the slave – on the ground that no person can afford payment of such heavy damages as the slave is likely to cause (BK 4a). On the other hand the tortfeasant slave is personally liable, for – having understanding – he is liable for his negligence. As long as he is a slave and has no independent means he is treated in the same way as a poor man who does not have the wherewithal to pay for damage he has caused; but once he is manumitted and acquires his own means, he is obliged to pay for the damage. Such, too, is the law in the case of a married woman, who generally does not have the means to pay for damage she has caused, but is obliged to pay for the damage when she is able to do so, as for instance after being divorced (BK 87a). His own negligence notwithstanding, the injuring party is exempt from liability for damage resulting from conduct which is licensed, whether consented to and authorized by the injured party or by the court. The injuring party is also exempt from liability if the damage caused is not of a physical nature, such as economic damage. The law of the State of Israel (Civil Wrongs Ordinance, 1947) renders a person over the age of 12 years liable in tort. The law imposes vicarious liability on a person for the acts of his servants and for acts done by others authorized by him. (Shalom Albeck)

Encyclopedia Judaica. 1971.

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