Seder Nezikin (Damages)

Universal interpersonal and societal issues, rather than Jewish ritual law, are the main subject of Seder Nezikin.

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. .The more one tests the witnesses, the more one is to be praised.  Ben Zakkai once even tested witnesses by asking them to describe the stalks of figs [in the vicinity of the crime]” (Sanhedrin 5:1-2).

While mishnaic criminal law depends on the testimony of eyewitnesses, civil law relies more heavily on oaths made by the parties themselves.  The rabbis assume that the divine repercussions of swearing falsely will dissuade any party in a civil suit from lying under oath.  Many of the cases considered in Seder Nezikin discuss the necessity of swearing, the types of oaths required in various situations, and the ways in which one utters an oath.  While these questions arise throughout the Seder, one masekhet—Shevuot (“oaths”)—is dedicated entirely to oaths, both those taken in civil disputes and those taken for other reasons.  

Seder Nezikin and the Bible

The Bible, by means of a few individual cases and legal precepts, offers the beginnings of a civil law.  This rudimentary law does not, however, provide sufficient basis for the structuring of a functional society.  Furthermore, biblical civil law responds to the reality of the biblical world and does not necessarily transfer directly to a new context.  In order to create a legal system that reflects the needs of the time, Seder Nezikin expands upon biblical law, explores situations not described by the Bible, combines biblical law with real life experience, and sometimes ignores biblical law in favor of laws based on real-world experience. 

One biblical section, which seemingly applies only to a very specific situation, becomes the basis for an entire mishnaic category of damages.  Exodus 21:28-36 describes the damages to be paid by one whose ox gores a human being or another ox.  The Mishnah expands on these verses, applying the biblical text to other types of damages caused by one's animal.  According to Bava Kamma 5:2:

"If a potter brings his vessels into another's property without the permission of the property owner and the property owner's animal breaks the vessels, the owner [of the animal] is not liable for damages; if the animal is hurt, the potter is liable.  But, if the potter brings the vessels into the property with the permission of the property owner and an animal breaks the vessels, the owner [of the animal] is liable."

A literal reading of the biblical verses might suggest that the owner of an ox is responsible for the damage this ox does to a person or to another ox.  Instead of reading the verse literally, the mishnaic expansion extracts from the biblical verse a number of principles of negligence and applies these to cases not addressed by the biblical text.  With this interpretive move, the Mishnah implicitly understands biblical law as a set of legal principles and values rather than as a set of rules governing specific situations. 

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Rabbi Jill Jacobs

Rabbi Jill Jacobs is the Executive Director of Rabbis for Human Rights-North America. She previously served as the Rabbi-in-Residence for the Jewish Funds for Justice.