An often discussed halachic element of Purim is the question of damages caused in the course of celebration, drunken or otherwise.
Purim damages can be a simple case of boys dancing round a table who brush against a glass and cause it to fall and break. Or it can be a more complex case of play-fights that result in physical damages to people or property.
We wish to clarify the halachic principles that govern such incidents.
What is the halachah concerning damages that are committed during Purim celebrations? Does the condition of the person who caused damage – drunk or otherwise – make any difference to the liability? Is the intention of the person a significant factor?
These questions, among others, are discussed below.
Duels and Damages
On the final day Sukkos, according to some commentaries, the people of Jerusalem used to snatch the Four Species from the hands of children, and eat the Esrogim (Mishnah, Sukkah 45a). Rashi explains that this practice was not Gezel. Since this was the common custom there was tacit consent to the practice.
Tosafos, in their first exposition, agree with Rashi’s explanation. In addition, they derive from the Mishnah that youths who tear each other’s clothes [or injure each other’s horses] in playful duels at wedding celebrations (intended for the entertainment of the groom) are exempt from paying for the damage they cause.
According to this approach, we find exemptions in cases of playful damages where there is an assumed risk factor that relevant parties take upon themselves.
Tosafos, however, also offer an alternative explanation for the Mishnah – an explanation that also appears in Rashi as we have it – according to which no snatching actually took place. Rather, the children would eat their own Esrogim, and not take anybody else’s. According to this interpretation, there is no proof for an exemption from damage liability in cases of common wedding duels.
Practical Rulings and Purim Damages
The practical halachah is in dispute among authorities. The Rosh (Sukkah 4:4) records both of the above interpretations and in a Responsa (101:5) rules stringently. Others side with Rashi’s interpretation, so that the exemption from liability applies even to wedding duels, and 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 exempting damage that arises from customary playfulness or rite 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.
It is important to note that based on this rationale, we find a basis not only for an exemption from liability, but rather for ex ante permission to playfully take somebody’s food. During the rest of the year, such acts would of course be considered Gezel, but on Purim, in line with a customary atmosphere of festivity, they are permitted.
The Beis Yosef (695) writes in fact that this custom no longer applies, and that there are therefore no grounds for exemption from damage liability on Purim. The Rema (Orach Chaim 696:8), however, does mention this custom. Certainly, this will not give a person permission to snatch another’s food where this is not the custom.
Below, we will see how this concept might apply to Purim damages, when they are minor and part of Purim festivities.
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.
As noted, in the instances above it is clear that the exemption is not only from liability post factum, but it also gives a person licence ex ante to perpetrate the deed. It is permitted to duel before the groom, notwithstanding the risk of causing damage. The custom according to the sources above is grounds for considering it as though there is no offense at all. Although the victim made no statement to this effect, it is as if the snatching or damaging is done with his permission.
The Kapos Temarim (Sukkah 45a) uses this line of reasoning to derive a stringency when it comes to bodily harm. The halachic ruling is that if one declares, “Tear my garment and be exempt,” it is legally effective. But a parallel declaration concerning bodily harm is not legally effective (see Choshen Mishpat 421:12). The prohibition against physical assault remains in place even given the victim’s permission.
Based on this, the Kapos Temarim deduces that a custom of risky playfulness will not have any force concerning bodily harm: if an explicit statement permitting physical damage is not effective, an implied statement, by force of custom, cannot be any better.
The Rema, however, implies that customary exemptions apply even to physical injuries (Orach Chaim 695:2 and Responsa, no. 210), leading the Kapos Temarim to leave the question open. (See also Aruch HaShulchan 695:10, who rules that the exemption does not apply to bodily damages.)
An alternative rationale, however, which can 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 public on Erev Shabbos. Although it is prohibited to run during the week for fear for causing damage, on Erev Shabbos is it permitted, and one who causes damage while running is exempt from liability.
This exemption is explained as an enactment of the Sages: the Sages wished to permit running on 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 a rabbinic enactment.
Damages on Purim
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 exemption will apply specifically to cases in which the damage was customary, meaning normal and to a degree that is to be expected under the circumstances. In such instances, the one who damaged is exempt from both prohibition and obligation to pay.
A typical example of this is when one person inadvertently steps on his fellow’s shoe during a Purim dance, tearing apart the sole from the upper leather. Under such circumstances, the person who caused the damage is exempt from liability. Similarly, if the dance took place around a table and a bottle was knocked over and broken, the perpetrator is exempt, since this damage is, as it were, within customary bounds.
Note that this applies only to damage caused in the context of a Purim celebration. Somebody who wantonly becomes drunk and causes damage, without any connection to a Purim feast, will be liable for damages.
A further point of note is that drunkenness is not grounds for exemption in cases of damages. Although somebody who is uncontrollably drunk is exempt from religious responsibility (Eruvin 65a), the Yam Shel Shlomo (Bava Kama 3:3) explains that he remains liable for damages, considering this to be “entirely obvious.” The ruling is confirmed by Shut HaBach (Yeshanos, no. 62).
The Yam Shel Shlomo highlights the fact that even on Purim, the obligation of becoming drunk does not require going crazy, so that there is no special reason for exemption from liability.
Significant Damages: The Case of the Car
A case came before the Institute’s Beis Din (Nesivos Chaim) of a young man, evidently drunk, who caused significant damage to a car. Though he might have been somehow hopeful that his antics would earn him a donation, at the end of the day it earned him a summons to Beis Din.
The case included a number of considerations, including the difficulty of establishing how exactly the damage was caused. However, it was clear that there was, in principle, full liability for the damage. Although there might be an exemption for customary damages, there is no such exemption for significant damages, which are, of course, not customary.
This principle is mentioned by the Mishna Berurah (695:13, citing the Bach), who rules that significant damages are not included in the exemption. The customary damages of Purim are limited to small claims.
Damages Today and the Question of Intent
According to the Aruch HaShulchan (695:10), customary Purim exemptions from tort liability do not apply today at all, since such boundless celebration is no longer the norm. This echoes the above mentioned ruling of the Beis Yosef concerning snatching food, who also notes that the custom of previous generations no longer applies.
It does not appear that the custom follows this ruling, but the matter of the custom requires further investigation. As noted above, the great majority of Purim damage cases don’t get to Beis Din.
Another important point to note is that Purim exemptions (and others of the same type) apply only to somebody who causes damages without intent – as clearly emerges from the above mentioned ruling of the Terumas HaDeshen (see also ruling of Mishnah Berurah 695). There is no custom that exempts somebody who causes intentional damage – though proving that the damage was done intentionally might be difficult.
Likewise, somebody who knows that his nature is to cause damage when drunk must take preventative measures, and must not become drunk if he knows that this will lead to damages (see Yam Shel Shlomo, Bava Kama 3:3).
Even assuming an exemption, it is proper practice for the perpetrator of the damage to offer payment – out of common decency as well as of possible halachic obligation.
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 by the table, it is virtually inevitable that someone will spill some food or drink on another’s good clothes. Is the person who spills his cup or food on somebody else’s clothes liable to pay 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. Yet, this is very much contingent on specific circumstances of each case, and a halachic authority should always be consulted.
Wishing all readers a joy-filled and damage-free Purim!