Question
Recently, as I was driving, I passed a car in a perfectly legal manner. Later, when I stopped at a red light, the car I had passed pulled up in front of me, blocking my path. When I got out of my car to complain, the driver, an irreligious Jew, jumped out of his car and showered me with powerful blows, hitting me with all his might, and drove off. Baruch Hashem, I didn’t suffer any lasting physical damage but the blows hurt for a few days. After he drove off, I followed him and noted where he parked his car. About two hours later I returned and broke his windows and slashed his tires and left a note: “Religious Jews aren’t suckers.” Afterwards, my conscience started bothering me that perhaps I am liable for the damages that I inflicted on his car. Am I liable?
Answer
In our answer, we accept your description of your actions and assume that you did nothing wrong and your assailant initiated his attack on you entirely without a just cause.
The source in the Gemoro that discusses the issue of liability in case two people fight with each other, is a Mishna (BK 33A) that states, “If two people fight with each other, the one who damaged more must pay in full for the excess damage that he did.” This means that we judge each person as if he is the only one who damaged, and each is liable in full for the damage that he did. Therefore, practically, the one who damaged more must pay the difference.
The Rosh (BK 3, 13) limits the Mishna’s ruling to damages that were not in self-defense, since one is allowed to damage in order to defend oneself and thus, he is not liable for such damages. Therefore, the Rosh qualifies the Mishna’s ruling to apply only if either both parties began hitting each other at the same time or the second party damaged the first party “after a while.” He does not elaborate and this will be clarified below.
However, if A started attacking B, B is not liable at all for the damages that he caused to A, and A must pay in full for all of the damage that he did to B. He adds that B is nonetheless liable for damage that was not done in self-defense.
The Rosh does not state how much time can elapse before B begins and still be qualified as an act done in self-defense. When the Tur and SA (421, 13), who follow the Rosh’s approach, record his ruling, the commentaries dispute this issue. The Sema (note 24) understands that the Rosh only means that B is liable if he damaged after he calmed down but if he damaged while his “heart was hot” (cham libo) he is not liable for the damage that he did. Even though the Rosh only freed B from paying for damages that were done in self-defense, the Sema maintains that the SA frees B from paying for any damages that he did before he calmed down. The phrase used by the Sema to describe his feelings is used by the Torah in describing the feelings of a murder victim’s immediate relative upon hearing of the death of his relative.
However, the Bach and the Taz disagree. They maintain that based on the Rosh, the only case where B is exonerated from damages is where B began hitting A while A was hitting him, since then B’s action is viewed as an act of self-defense. However, if B began hitting after A clearly ceased hitting him and B was in no danger of being beaten further, B is fully liable even if he began hitting immediately after A ceased hitting him.
The Rishonim were asked to rule in several practical situations, which bear heavily on your question. Before citing the sources, it is important to recall that it is forbidden to cause a non-Jew to cause a loss to another Jew and one who causes a gentile to become involved is called a moseir and the Gemoro (BK 5A) states that a moseir is liable for all the damages he caused. (It is classified as garmi.)
The Maharam of Rottenberg (Teshuvos Maimonies, Nezikin end of res. 15) was asked to rule in a case where A hit B and then B, in his anger, turned to the gentile authorities who penalized A. The Maharam cites an edict (takono) of the communities in Medieval Germany that a victim of a beating who in his anguish turned to the gentile authorities does not have the status of a moseir since he only turned to them as a result of the pain and anguish he suffered.
The Maharam at first understood that this edict was only promulgated in order to free the victim of the beating who turned to gentiles, from the additional penalties imposed by the Rabbis on a person who is a moseir. However, a victim who turns to gentiles is still liable for the damages he caused.
He adds, in a ruling that is pertinent to your situation, that to decide how much to pay we must take into consideration all of the five components of liability that apply when one wounds another person: permanent physical damage, anguish, medical expenses, temporary disability, and embarrassment. Even though contemporary botei din, since their dayanim’s semicho did not originate with Moshe Rabbeinu, are not empowered to penalize a person for causing anguish and embarrassment, nonetheless beis din is empowered to, and must, reduce the amount he must pay as a moseir (or any other payment) by this amount. (The source is the Gemoro in BK 15B.)
Based on this ruling of the Maharam, even if you are liable for the damage that you did to your assailant’s car, the amount that you have to pay is reduced by the amount that he owes you for having caused you pain and embarrassment when he beat you up, which may be equal to or even more than the damage you did to his car.
The Maharam later writes that maybe this edict not only exempts the victim from the additional penalties of a moseir, but maybe it even frees the victim from paying for the damage that he caused his assailant by turning to the gentile authorities for help.
In another responsum, the Maharam (Mordechai BK 55) was asked by a rabbinical authority how to rule where the victim of a beating turned to the gentile authorities for help and the authorities caused a monetary loss to the assailant. Furthermore, someone else, who was not a victim, also went to the authorities. The Maharam in this responsum says that if the custom there was to free a victim from paying for the damages that he caused when he acted out of anguish, then the other person who went to the authorities has to pay the entire amount of the damage.
In a third responsum (Mordechai BK 196) the Maharam ruled that in the particular circumstances of the case it does not appear to him that the one who in anguish turned to the authorities, is exempt from paying for the damages he caused.
The Rama (res 88) discusses the responsum where the Maharam freed the victim of a beating for the monetary damage he caused his assailant and he qualifies that this exoneration only holds in case the victim has not yet calmed down, and also if he could not have turned to a beis din to handle the matter. However, what is important for us is that the Ramo ruled that if the victim of an assault damaged in anguish, he is not liable if he had no other recourse. In your situation, you also did not have any other recourse since your assailant will not come to beis din and second you probably are afraid to take him to beis din or court out of fear of the repercussions.
Similarly, the Mahari Weill (res. 28), based on the responsum of the Maharam that exonerated the victim of an assault who in his anguish damaged his assailant, ruled that if the victim beat the wife of his assailant or cursed his assailant in his anguish, he is free from paying.
When the SA records the law we cited earlier concerning two people who fought with each other where the SA ruled that a victim who damaged in self-defense is not liable, the Ramo cites this ruling of the Mahari Weill, by writing, as a continuation of the words of the SA, “The same is true in case of cursing. Only the one who began is liable.”
The Chavos Yair (res. 65) also was asked to rule concerning a fight, and he questions the terminology of the Ramo in saying, “The same is true…” He observes that when one responds by cursing he is not acting in self-defense, which is the reason the SA freed the respondent from paying for damages. He therefore deduces that the Ramo means to add on to the ruling of the SA that there is a second reason to exonerate a respondent from paying, namely, if he acted in anguish. He writes that the source of this is the responsum of the Maharam that we cited earlier.
He says that self-defense and anguish are two independent reasons to free the respondent in a fight from paying for damages and he clarifies that there are numerous differences between the two. One difference is that the exoneration on the grounds of self-defense is based on the Gemara whereas the exoneration based on acting in anguish is an edict promulgated much later. A second difference is that self-defense applies only immediately but acting in anguish applies the whole day and perhaps even later. Thirdly, the dispensation granted to one who acts out of anguish is not limited to the amount of damage that is necessary since people are not in control of themselves when they damage out of anguish.
He writes much more but we will just cite one point that is pertinent for your case. He resolves the apparent contradiction in the two rulings of the Maharam by differentiating between the victim of a beating who is exonerated for his mesira from even paying for the damages he did, as opposed to the victim of mesiro who was moseir in response in his anguish, who is only freed from the penalties imposed on a moseir but not for the damages he caused.
We note that based on the above responsum of the Ramo, and the fact that the Mahari Weill who is the source of the Ramo based his ruling on the edict that freed one who acted out of anguish, the explanation of the Chavos Yo’eir is very plausible. This also is the approach of the Gro (notes 17&18) who agrees with the Sema that the word “immediately” written in the SA is an error. However, unlike the Sema who gave the Rosh as the source that it is a mistake, the Gro says the source is the Maharam etc. This means that the Gro understood the Ramo like the Chavos Yo’eir and even understands the SA as ruling like the Maharam.
Thus, there is a second reason why you do not owe anything to your assailant since based on the Ramo and all his sources you are not responsible for your damage at all. We should note that you cannot combine the two reasons and collect from your assailant even if he would go to beis din, for two reasons. One reason is that, as we mentioned before, beis din today is not empowered to make one pay for the damages of pain and embarrassment. However, if this was the only reason, beis din can pressure (CM 1, 6) the assailant to pay money on his own volition. However, the second reason is that there is no double jeopardy. The Nemukei Rav Menachem Mirzburg writes this in reference to one who in his anguish turned to the secular authorities who penalized his assailant. He rules that the victim cannot afterwards use beis din to penalize his assailant further.
