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ChabadU Talmud Discovering Talmudic Principles Liability for Damages

The Majority Principle

Liability for Damages, Lesson 1

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The Majority Principle: Liability for Damages, Lesson 1

In this Talmud class, careful analysis of the mishnah’s precise wording leads to a fascinating discovery about the ‘majority’ principle in monetary matters.
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Related Text: Talmud - Bava Kama: 27a
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Torts; Damages Talmud
Rabbi Binyomin Bitton, originally from Lyon, France, is the founder and spiritual leader of Chabad of Downtown Vancouver, he's co-Dean of the Jewish Academy, and the director of the Tzfunot Institute. A renowned Talmudic scholar, Rabbi Bitton's warmth, knowledge and passion for learning has brought him to teach in communities around the world. He now lives in Vancouver together with his wife Malky and six children.
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Rabbi Binyomin Bitton December 10, 2013

To Manuel Ortiz re. Ambiguity Dear Manuel,

Thank you for your kind feedback. Great question!

This is how I would answer: From the court's perspective, they will have to apply the law only based on what they can see and hear. As the Talmudic saying goes אין לדיין אלא מה שעיניו רואות -- "One can only judge based on what he sees".

However, from the seller's perspective, he/she should keep in mind (and in heart!) the prohibition of “Geneivat Da'at” (literally "theft of the mind"), deceiving or cheating the buyer (see Maimonides Laws of Personal Development 2:6). Reply

Rabbi Binyomin Bitton December 10, 2013

To Anonymous in Baltimore re. the principle for verifying terms and fulfillment of contracts. Indeed, this is a very good question!

Please let me preface that this topic (terms and conditions in sales and contracts), is in fact a subject discussed extensively in the Talmud, the commentaries and in Jewish law (see for example Tosafot in our sugya, Talmud Bava Kama 27a, Talmud Bava Batra chapter 4-6, Maimonides Laws of Selling Chapter 16, 20, 21, 25-27), and it really deserves a 'course' on its own. Perhaps something to consider in the future.

As a typical Talmudic discussion, it was briefly brought here in our sugya parenthetically just to answer the precise choice of wording in the Mishna (pitcher/barrel).

However, just to give you at least some idea, one of the guiding principles used sometimes (among others) by the court to determine contractual terms would be the price paid for the item. The amount paid would often be used as a factor to determine and clarify an ambiguous term and arguments between seller and buyer. See also Tosafot ibid for why in our sugya the amount paid could not be used as a factor in the pitcher/barrel case.

As for your second question: Yes, it seems from the Mishna that any type of object similar to the pitcher, the law would be similar. See however the following few Mishnayot and Talmud discussion in this chapter for various other scenarios, objects and opinions. Reply

Anonymous baltimore August 18, 2013

what is the principle then for verifying terms and fulfillment of contracts? I have a question about the interchangeable nature of the terms discussed (pitcher/barrel). If that applies broadly, then how do we ever know we have a contract or can even communicate with each other if we can't agree upon what terms mean? what are the defining characteristics for a pitcher vs. barrel? If majority understanding of a term does not apply (imagine the precision needed for translation across region) in monetary matters, does that benefit buyer or seller? who gets to determine the final definition of an ambiguous term? Sometimes it could benefit buyer, sometimes seller, so what is the principle used generally for monetary matters for ambiguous terms? I am not sure what the guiding principle would then be to determine fulfillment of contractual terms. I know it isn't the majority, but what is it then?
in the original mishna, the person who puts an object in public domain can't get compensation for any damage, but is liable if anyone is hurt, no matter the object? Reply

Manuel Ortiz Puerto Rico August 16, 2013

Ambiguity Thank you Rabbi Bitton! So, in a situation where money is involved, as in a business transaction, if an agreement has been made and there was ambiguity in the use of vocabulary, the agreement must follow through even after discovering that both persons involved in the agreement where referring to two different things. So, in principle, once you have made an agreement you have to deliver as agreed. But, what happens when a person purposely deceives another into a business agreement by taking advantage of a common ambiguity in the use of words? Meaning, a person does it on purpose because he/she knows that the vocabulary he/she is using is commonly referred to more than one thing, and this will lead the buyer into believing is getting a great deal. Reply

Anonymous israel August 16, 2013

yeshar koiach! Thank you Rabbi Bitton and thank you Chabad.org. Really good stuff. Reply

Anonymous USA August 10, 2013

The Majority Principle Great teaching Rabbi Bitton! I missed the first teachings but I will look into the recently aired ones. I love to study Mishnah, it teaches how to go about in relationships in a fair, lawful way. Thank you so much. Reply

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