Judaism | New York Personal Injury Law Blog

Most folks know that much of our criminal law is biblical. Thou shalt not murder, nor steal, nor bear false witness come right from the 10 Commandments.

But as my friend appellate lawyer Michael Altman points out to me, so too does much of our civil tort system.

Last week’s Torah portion was Mishpatim, which means laws. Among other things it set up a civil justice system, which includes remedies for torts. As he reviewed the portion it struck him how relevant some of it is to what we do in the personal injury bar today.

Perhaps the most significant part is demonstrating just how far back a civil justice system that recognizes compensation for torts goes.

The citations below (of course there are citations, this is a law blog, right?) are from the Old Testament.

The most famous quote from that Torah portion is “an eye for an eye and a tooth for a tooth, a hand for a hand, a leg for a leg.” (Ex. 21: 24) You can almost hear Tevye quip, “Very good, and the whole world will be blind and toothless.” While a great line for Fiddler on the Roof, all rabbinic commentaries agree that it is not to be taken literally. Rather, it requires monetary compensation equal to the value of the lost body part.

The principle of compensation for personal injuries doesn’t just go back centuries. It goes back millennia.

In addition to requiring compensation for injury to a person, the Torah also recognizes the obligation to make restitution for injury to property:

“If a man takes his animals into someone else’s field or vineyard, and he lets them trample or graze in this other person’s field or vineyard, he must make restitution with the best of his field or the best of his vineyard.” (Ex. 22: 4)

Perhaps most importantly, it provides that all are equal before the law — rich and poor alike — as former Chief Judge Lippmann liked to note in advocating equality before the justice system:

“You must not pervert justice for your destitute countryman in his lawsuit.” (Ex. 23: 6)

Directly on-point with what Michael and I do, this part of the Torah also provides that one who causes or creates a dangerous condition is financially responsible for injuries resulting from it:

“If a person removes the cover of a pit, or digs a pit and does not cover it, and a work-bull or a donkey falls into it, the one responsible for making the pit must make restitution. He must restore the value of the animal to its owner, and the carcass remains its owner’s property.” Ex. 21: 33-34

And it provides for restitution for causing or creating a hazard:

If a fire breaks out and spreads through thorns, so that it consumes stacked or standing grain or a field, the one who kindled the fire must make restitution. (Ex: 22: 5)

The concept of notice is well known to the bar, and also here. It is not enough, for example, to make dog owners liable if their pooches bite someone. They must have first known that the dog had a known vicious propensity. This concept was not invented by us:

“If a work-bull gores a man or woman and the victim dies, the work-bull must be stoned; its meat may not be eaten. But the owner of the work-bull must be acquitted. However, if it was a work-bull that had gored on three previous occasions, and its owner had been warned in court but he did not guard it, and it then killed a man or a woman, the work-bull must be stoned. Its owner, too, will be put to death.” Ex. 21: 28-29.

I’d like to thank Michael for putting these quotes together, something that was well beyond my limited ability on the subject of Torah.

But I publish them here because people often see things through the lens of what happened today, or last week, or maybe a decade ago. But just a little bit of history helps put things in a different perspective.

(Law through the ages is part of a New Deal mural in the rotunda of the New York County Courthouse, including Babylonian Hammurabi’s Code and Hebraic law, among others).

A young lady becomes a bat mitzvah in Israel after hiking up Masada.

When a judge writes a decision trying to figure out what, exactly, a bar mitzvah is, someone ought to take note. Especially when he uses an old Hasidic parable in order to render a decision. And given that no one has yet brought this November decision to light, it seems that it’s up to me.

The six-page decision comes out of Rye City Court, a small claims court in suburban Westchester County, not far from where I live. And the judge noted that, while the court’s jurisdiction was somewhat limited, it doesn’t mean that it can’t wrestle with “geo-political issues, gender conflicts or theological dilemmas.” And not only that, but in addition to contract law issues, the court was “presented with the question of what is prayer and who decides what prayer is appropriate.”

Yeah, that does seem like an awful lot to ask for small claims court. But at its core, Judge Joseph L. Latwin had to decide who wins a contract dispute, when training a young man to become a bar mitzvah is the subject of the contract. That training revolves around learning to read Hebrew and learning the prayers associated with the service in which the kid will participate after he turns 13.

In Zyngier v Lurie, the claimant is the father of the boy preparing for his bar mitzvah service, and sought a refund of the downpayment for bar mitzvah lessons/training. The defendants are a rabbi and cantor who were teaching him, who have counterclaimed for the work that they performed. They were eight months into the training and just six weeks from The Big Day, when trouble erupted.

The problem was that the parents didn’t like parts of the service that the rabbi/cantor said needed to be done. Specifically, they objected to two English language prayers, one for the United States and one for Israel.

Why object? The mother is Lebanese-Christian and lost family in wars with Israel. The father is Brazilian (and presumably Jewish). Thus, there was no ancestral tie to the U.S., and the mother was uncomfortable with the prayer for Israel based on her personal history.

And there was a third issue — I did write, after all, that gender conflicts were part of this. The prayers that were being taught were egalitarian in nature. Thus, a central prayer in the service that is devoted to honoring the patriarchs (Abraham, Isaac and Jacob) now also includes in some of the more liberal synagogues the corresponding matriarchs (Sarah, Rebecca, Rachel and Leah).

The problem? The mother of the bar mitzvah boy wasn’t Jewish and the parents didn’t want to highlight this fact by including the matriarchs, and they wanted the prayer omitted.

Oy! What’s a judge to do? And the answer? Bring up an old Hasidic parable, of course, one that is often used to illustrate the essence of prayer. Isn’t that what you would do?

In this story, a young shepherd boy that doesn’t know how to pray finds himself in a synagogue on a holiday. Since he doesn’t know how to pray, but really wants to, he whistles his prayers to God. But while chastised by his father, the gates of heaven burst open. Because, the story goes, it wasn’t the specific words or form of prayer that were important, but the sincerity and spirit behind them that actually mattered.

The court then observes that:

The Court is aware that there is no biblical prescription of what prayers are required to be said at a bar mitzvah service. Other than the prayers before and after the reading of Torah and Haftorah, none of the prayers are mandatory, although many traditional prayer are bible based and overwhelmingly offered. A congregant from New York could likely walk into a synagogue anywhere in the world and not find much variation (except that translated prayer would be in the native language, not necessarily in English). Virtually the same prayers would be said in virtually the same order. This is a matter of tradition established over the 5775 years.

…

This Court is not the proper forum, nor is it capable of determining what prayer anyone should say or how it is to be said. The Court has little insight as to whether certain words, heartfelt whistling, or other mode of communication will find favor with any particular deity. That is better left to theologians. Nor will the Court impose any prayer regimen on either the claimant or the defendants. That is their personal choices – not an issue of secular law.

Hoisted in the air in celebration, post bat mitzvah service.

But things do change. There was no prayer for the United States as part of the service, for example, until recently, and you wouldn’t expect a synagogue in Brazil to use it.

And the adding of matriarchs is not only recent, but only observed in some congregations. Judge Latwin knew that he couldn’t be placed in the position of deciding which prayer was proper and which was not. We still have that separation of church and state thing going on, even when the church is a synagogue.

So what does he do? Basic contact law:

A court cannot enforce a contract unless it is able to determine what the parties actually agreed to. If an agreement is not reasonably certain in its material terms, there can be no legally enforceable contract.

Here, there was no meeting of the minds for what the service was to entail. The contact stated that the defendants were to provide “all liturgical and Torah text for custom prayer book,” which tells us nothing of the important details that were at issue. From the court:

There is no discussion as to whom if anyone has final editorial say on the content of the custom prayer book or how any dispute over the content was to be resolved. It appears to not have been contemplated by the parties and not a part of any agreement between them. Thus, the contract lacks the essential element of a meeting of the minds on this issue and the contract must fail.

And the decision: The defendants rabbi and cantor were entitled to the fair value of the 25 hours that they had spent with the kid up until it was realized that there was no meeting of the minds.

There was no discussion as to whether the young man ever had his chance to participate in the service.

(hat tip to Jeff Stillman)

Category Archives: Judaism

Torts and Torah

What’s a Bar Mitzvah? (Asks the judge…)