One of the most striking features of Torah tort law is the concept of indirect damage. In contrast to modern law systems, Torah law includes an explicit exemption from indirect damage, known as grama.
In fact, the grama exemption from indirect damage goes beyond tort law, and can apply even to cases of murder. Moreover, the concept of grama goes beyond the realm of the interpersonal, and applies even to the laws of Shabbos and to other halachic fields. For purposes of this article, however, we will limit the discussion (already broad enough) to tort law.
What are the categories for which a person is exempt from damages due to their indirect causation? Is the exemption absolute? What is the difference between grama, from which a person is exempt, and garmi, for which a person is liable? And how will beis din today approach the matter?
These questions, among others, are discussed below.
The Exemption of Grama
Citing Rav Ashi, the Gemara (Bava Kama 60a) explains that there is a difference between tort law of damages and laws of Shabbos.
On Shabbos, one of the prohibited labors is winnowing, even though this is performed with the assistance of the wind. The Gemara explains that this is because the Torah prohibits meleches machsheves: if the result is achieved in the usual way, one transgresses the Shabbos prohibition. For tort law, however, somebody who causes damage by means of the wind (provided it is unusually strong), is exempt from liability, because the damage is indirect.
This halacha is ruled by the Rambam and the Shulchan Aruch (Rambam, Nizkei Mamon 14:7; Choshen Mishpat 418:9). The reason it only applies to an unusually strong wind, is that a normal wind is considered as though the damage is caused directly by the person initiating the action.
The general rule that we derive from the Gemara is that a person is exempt from paying for indirect damage, known as grama. What exactly does this cover?
Grama and Garmi
While the Gemara seems to accept that a person is exempt from paying for indirect damages, another Gemara (Bava Kama 100a) notes a dispute between Rabbi Meir and the Sages concerning indirect damage categorized as garmi.
According to Rabbi Meir, a person is liable for garmi damages. This, indeed, is the ruling given by the Shulchan Aruch (386:1), noting such instances as burning somebody’s promissory note (making it difficult for him to collect his debts), knocking somebody’s coins into inaccessible places (though the coins remain, it costs money to retrieve them—some maintain that this instance is a case of grama, and not garmi), or melting somebody’s gold coins (though the value of the metal remains, the additional value of the coinage is lost). But what is the difference between grama and garmi?
According to certain Rishonim, such as Rashi in Bava Basra (22b; see Ramban, Bava Kama 100a and Shach 386:4), Rabbi Meir simply disagrees with the exemption from indirect damages principle. Wherever we find the idea that there is no liability for grama, it follows the opinion (of the Sages) that one is not liable for garmi, and not the countering opinion of Rabbi Meir.
However, the great majority of Rishonim write that there is a distinction between grama and garmi: while a person is exempt from grama damages, he is liable (according to Rabbi Meir) for garmi damages. This liability might be a Torah liability, as the Ramban maintains in his work on garmi (Kuntress Dina DeGarmi; see also Magid Mishnah, Chovel Umazik 8:1), or it could be a rabbinic obligation or rabbinic fine (see Tosafos, Bava Basra 54a; Shach, Choshen Mishpat 386:1; Tumim 119:2).
According to the latter opinions, we need to explain the difference between grama and garmi: when is a person liable for indirect damages, and when is he not liable?
Rishonim mention at least three possibilities:
- Liability of garmi applies when the damage is perpetrated by the person himself, albeit in an indirect manner (Tosafos, Bava Basra 22b and Rosh, Bava Basra 2:17—first suggestion); the grama exemption refers to cases where the damage is not done by the person himself
- Garmi applies if the damage occurs at simultaneously with the causative action, while grama applies when there is a time delay (Tosafos and Rosh—second suggestions)
- Garmi is a rabbinic fine, which the Sages imposed for cases which occur frequently to ensure that people should not abuse the exemption for indirect damages to damage one another (Ritzva, cited at the end of Tosafos).
The third possibility, which seems to be the most pragmatic solution, is noted by the Rema (386:3), who writes that “in all cases [of indirect damage] that are frequent and usual, the perpetrator is liable as a fine.” The Shach (386:24), who basically agrees with this approach, writes that the Rema goes a bit too far. While the liability of garmi is a rabbinic fine in order to prevent abuse, the boundaries of the fine were set by the cases that Chazal mention. We do not have the power to expand the ruling to cases not referred to by Chazal, even if they are frequent.
Level of Liability and Exemption
Although a person is liable for garmi damages, there are a number of limitations to the liability. The authoritative opinion (as cited by the Ketzos Hachoshen 386:2, citing the Rama) is that the liability of garmi is limited to paying for direct damages—the category known as nezek. It does not include other categories of damages, including sheves (damage to a person’s income due to temporary incapacitation), ripuy (medical expenses) and boshes (shame).
Another limitation of garmi liability is that in contrast to direct damage, it does not apply when damage is caused accidentally. Likewise, a person is not liable for garmi damages that are done against the perpetrator’s will (in cases of oness) or, according to some opinions, for cases in which the perpetrator causes the damage in trying to save his own property (see Pischei Choshen, Nezikin 3:39).
The reasoning behind this could be that the lack of intent distances the damage from the perpetrator. Combined with the fact that the damage is indirect, this is sufficient to exempt him from liability.
Grama is not Permitted
The Gemara (Bava Basra 22B) states that it is prohibited to cause damage to someone. The leniency on causative damages is restricted to financial liability. One is not allowed to cause damage to others. Moreover, even though a person is not legally liable for grama damages, he still carries a kind of moral responsibility for the damage, which he discharges only by paying for the damages. This is known as chayav be’dinei shamayim.
Thus, the Shulchan Aruch rules that somebody who hires false witnesses to cause financial damage to another individual is formally exempt since the damage is indirect and considered grama. He is nevertheless chayav be’dinei shamayim (Choshen Mishpat 32:1; see Shach 2). The same is true of a witness who refuses to give testimony (Choshen Mishpat 28:1). When one is chayav be’dinei shamayim he is really obligated to pay. It is just that beis din doesn’t have the authority to force him to pay.
The Meiri (Bava Kama 56a) writes that this (limited) liability applies only to cases of intentional grama damage, and not to unintentional damage.
Beis Din Jurisdiction
There are ways in which beis din can act to prevent people from taking advantage of the grama exemption.
One relevant halacha is that when somebody acts in a way that causes potential damage, but the damage has not yet occurred, beis din can force the perpetrator to rectify the situation to prevent the damage, or to accept liability for whatever damage may occur. The Rema (386:3) rules that this applies even if it costs the perpetrator money to rectify the situation and prevent the damage.
Another means of enforcing grama damages is to contract around the exemption. This can be done ex ante by contractually accepting liability for indirectly caused losses. Such an agreement is binding by halacha (see Pischei Choshen, Nezikin 3:42). Naturally, this will only be effective for cases in which parties are aware in advance that a situation might result in indirect damage.
For cases in which damage has already occurred, another possibility is that those coming before beis din explicitly accept upon themselves that beis din may find the perpetrator liable even for cases of indirect damage. Some batei din include this as an explicit stipulation in their arbitration agreement: litigants sign that they accept liability even for indirect damages, if the beis din so finds. However, one does not have to acquiesce to such an agreement and beis din has no authority to force any party to a din Torah to accept such an arrangement.
The following are some practical instances of grama and garmi damages. Note that virtually every case of unintentional damage is complex, and cases often involve other related issues.
- Missing a Meeting
Reuven arranges a business meeting with Shimon at an agreed location. Shimon goes to the meeting place, incurring travel expenses and/or losing worktime. At the last minute, Reuven backs out of the meeting and doesn’t show up. Is he liable to pay expenses and damages?
The Rema (14:5) relates to a case in which a person agreed to adjudicate in a distant city, agreeing to meet his litigant at the relevant location, yet ultimately failed to show up. The Rema says he is liable for needless expenditures he caused. This is included in the liability of garmi. Reuven will therefore be liable to pay travel expenses.
However, he will not necessarily be liable for the lost day of work. Preventing a person from working (even by tying him up) is considered grama by some Rishonim (see Nimmukei Yosef, Bava Kama 8b, citing Tosafos and the Ra’a), while others (the Rama, based on Bava Kama 85b, and the Ramban in Dina De-Garmi) write that he is liable for the damage.
- Loss by Fright
Reuven is carrying some groceries. Shimon hides behind a wall, and as Reuven comes around the corner he shouts “Boo!” Reuven, startled, drops a bag containing an expensive bottle of wine, which smashes on the floor. Is Shimon liable?
The Shulchan Aruch (420:32; see also Rema 386:3; Shach 386:24) rules that frightening somebody without physical contact, thereby causing him illness or injury, is considered grama. While prohibited, there is therefore no liability to pay damages, though a moral obligation remains (chayav be’dinei shamayin). The same halacha will apply if a person chased somebody else, causing him (indirectly) to fall and incur damages.
Thus, Shimon is exempt from liability, but has a moral obligation to pay for the damage. Of course, the halacha is different if Shimon actually grabbed Reuven or tripped him up; cases of physical contact are considered direct damage, and Shimon will therefore be liable for the damage (Choshen Mishpat 420:25, 32).
- Breaking Tools
Reuven broke Shimon’s professional tools, rendering him unable to work for a week. Is he liable for lost earnings?
The Yerushalmi (Bave Metzia 5:3) relates to a case mevatel kiso shel chaveiro—somebody who restrains his friend’s money, thereby preventing him from earning profit—stating that there is no financial liability for such cases, and only a “complaint.” This indicates that similar cases of causing lost income are considered grama alone, meaning that there is no liability, and perhaps even no moral obligation since there is no loss of capital, but only of profit (see Shach 61:10 and 292:15; Shut Imrei Binah no. 1).
However, where there is a definite loss of regular earnings, the Aruch Hashulchan (61:11) states that this is considered loss damage, for which Reuven will be liable. However this is not agreed by all authorities, so that it will be difficult for Shimon to extract compensation in a beis din (see Pischei Choshen, Nezikin pp. 72-73).
There is far more to be written about grama and garmi, and this article has only touched the surface of a complex halachic issue. However, the main purpose of the article is to raise awareness of the topic, which is extremely relevant in our everyday lives. Many types of financial damage, the more so today, are indirect, and involve the halachic discussions related to the grama and garmi categories. Of course, all practical questions should be addressed by competent authorities.