Purim commemorates a reversal, a day of nahafoch hu, when fortunes were reversed and tables were turned.
In the present article we will discuss a specific reversal that is not usually included in the theme, and relates to Torah tort law. What is the halachah concerning damages that are committed during the course of Purim festivities?
Broken in Purim Festivities
Consider the following question, which many of us have experienced in one form or another. A group of tipsy teenagers barges into a house on Purim, collecting money for some worthy cause, and drinks for themselves. As they dance boisterously round the living room table, to the amusement of guests and the concern of the host, one member of the merry group brushes against a glass, causing it to fall and smash.
The broken glass is quickly cleared away, donations and drinks are handed out, and the boys leave just as they came, off to another home for more drinks, donations, and hopefully no more damage.
But what of the broken glass? The boy who caused the damage recalls the affair, and wishes to know if he is liable to pay for the damage. Is he?
Wedding Duels and Playful Snatching
The Mishnah (Succah 45a) teaches – based on Rashi’s interpretation – that on the final day of Sukkos, the people of Jerusalem used to snatch the Four Species from the hands of children and eat the Esrogim. Rashi explains that this practice does not transgress the prohibition of Gezel. The reason for this is that this was the common custom, and that therefore there is tacit universal agreement to permit the practice.
Tosafos, in their first exposition, agree with Rashi’s assessment. In addition, they derive from the Mishnah that youth who tear each other’s clothes [or injure each other’s horses] in playful duels at wedding ceremonies (intended for the entertainment of the groom) are exempt from paying for the damage they cause.
According to this approach, we find cause for exemptions in cases of playful damages, wherever there is an assumed risk factor that relevant parties take upon themselves.
Tosafos, however, offer an alternative explanation for the Mishnah, according to which no snatching took place. Rather, the children would eat their own Esrogim and not take anybody else’s.
According to this interpretation, there is of no source for exemptions from damage liability in cases of common wedding duels.
Practical Rulings and Purim Damages
The practical halachah of this question involves a dispute among authorities. The Rosh (Sukkah 4:4) rules (in accordance with the second interpretation of Tosafos) that there is no source for exemptions in cases of duels and similar circumstances
Others side with Rashi’s interpretation, so that the exemption from liability applies even to wedding duels. This ruling is cited by the Rema (Choshen Mishpat 378:9), quoting Mordechai and others (see also glosses of Vilna Gaon 378:24).
The principle that there is an exemption from liability for damage that arises from customary playfulness is extended to Purim by the Terumas Hadeshen (110, citing Riva; the ruling is cited by the Beis Yosef 695). In parallel with the exemption for somebody who snatches an Esrog in keeping with custom, somebody who playfully snatches food and the like on Purim is also exempt from liability.
During the rest of the year, such snatching would be considered Gezel. On Purim, however, it is permitted, since it is part of the Purim festive atmosphere.
Although the Beis Yosef (695) writes that this custom no longer applies, and therefore there are no grounds for exemption from damage liability on Purim, the Rema (Orach Chaim 696:8) does mention the ruling in the name of yesh omrim.
As we will see below, the same concept applies to damages, when they are within reason and part of Purim festivities (see Magen Avraham, who points out that the exemption applies only to damages caused during celebration).
Physical Damage and Bodily Injury
Does the exemption for customary damage apply even to bodily harm? The answer to this question depends on the rationale behind the exemption.
In the instances above, it is clear that the exemption is not only from payment after the fact, but it also gives a person license to perpetrate the deed. On Purim there is no prohibition on playful snatching. It is likewise permitted to duel before the groom, notwithstanding the risk of causing damage.
This implies that the custom in the sources above is not merely a matter of mechilah, the foregoing of payment on the part of the victim. Rather, we consider it as though there was no offense at all. Although the victim made no statement to this effect, it is as if the act of snatching or damaging is done with his permission.
This line of reasoning is adopted by Kapos Temarim (Succah, loc. cit.), who rules that there would therefore be no exemption when bodily damage was inflicted. This is because, although the declaration “tear my garment and be exempt” is legally effective, the parallel declaration with regard to bodily damage has no legal effect (see Choshen Mishpat 421:12), and the prohibition against physical assault remains in place.
The Rema, however, implies that customary exemptions apply even to physical injuries (Responsa, no. 210) and therefore have a different basis, leading the Kapos Temarim to leave the question open.
An alternative rationale, which would explain why the exemption applies even to bodily damages, is based on a Gemara in Bava Kama (32a), which states that it is permitted to run in the public domain on Erev Shabbos. Although during the week it is prohibited to run out of fear for causing damage, on Shabbos is it permitted, and one who causes damage on the run is exempt from liability.
This exemption is explained as an enactment of the Sages: the Sages wished to permit running on the Shabbos eve, and therefore exempted the person running from damage liability. The same can be said of customary damages. A person who follows a customary practice is exempted from liability by rabbinic enactment.
With this in mind we come to the case of Purim damages.
The Rema rules (Orach Chaim 695:2) that if someone damages another person during and on account of Purim festivities, he is exempt from liability.
Yet, in view of the sources above, this will only apply to cases where the damage was customary, meaning normal and to a degree that is predictable under the circumstances. In such instances, the one who damaged is exempt from both the prohibition against causing the damage and the obligation to pay.
A typical example of this is when one person inadvertently steps on his fellow’s shoe during a Purim dance, tearing the sole from the upper leather.
In such circumstances, the person who caused the damage will be exempt from liability. Similarly, if the dance took place around a table, and a bottle was knocked over and broken, the perpetrator would be exempt. Such damage is considered
Note that this applies only to damage that is caused in the context of a Purim celebration. Somebody who becomes drunk on Purim and causes damage, without any connection to a Purim feast, will be liable for damages.
Moreover, the Mishna Berurah (695:12, citing the Bach) rules that significant damages are not included in the exemption. The customary damages of Purim are limited to small claims.
It is also noteworthy that according to the Aruch HaShulchan (695) the customary Purim exemption from tort liability does not apply today, since such boundless celebration is no longer the norm.
Charity Collectors who Cause Damage
Will this exemption extend to drunken youth who enter a house for the purpose of collecting charity? Unlike customary dances and duels, it is perhaps more difficult to see a homeowner as telling the entire world (anybody willing to barge in): “Break my possessions and be exempt!” People generally don’t want drunkards running wild in their homes, even on Purim.
Similarly, the rationale whereby the Sages exempted a person from damages will apply to regular circumstances, and might not apply to people who walk into others’ houses.
Yet, it is hard to give a general ruling, and every case has to be weighed based on the specific circumstances. The difference between wild frivolity and Purim celebration is key. Even where a person will be exempt, it is recommended practice for the perpetrator of the damage to offer payment – out of decency as well as out of possible halachic obligation.
Purim and Other Stains
An interesting and pertinent issue that follows from our discussion is the halachic status of stains that we occasionally pick up though wine spills at communal events.
In a crowded hall, with everybody vying for a good position at the table, it is virtually inevitable that someone will spill some food or drink on another’s Shabbos clothes. Is the person who spills a cup or food on somebody else’s clothes liable to pay for the dry cleaning bill?
Based on the foregoing discussion, such damage might be considered customary (since it is almost inevitable), so that the person who perpetrates the damage will be exempt from dry cleaning costs. Yes, this is very much contingent on specific circumstances of each case, and a halachic authority should always be consulted.
It goes without saying that Purim exemptions (and others of the same type) apply only to somebody who causes damages without intent (Mishnah Berurah, loc. cit.). Likewise, someone who knows that his nature is to cause damage when drunk must take prior preventative measures, and he must not become drunk if he knows that this will lead to damages (see Yam Shel Shlomo, Bava Kama 3:3).
Wishing all readers a joy-filled and damage-free Purim!