By Aaron Lang.  Just as the kinyan defines the nature or status of property and people, the ma’asa defines the nature of the criminal acts. For example, homicide, the ma’asa of killing, is categorically forbidden. Lack of consent is not an element. The common law, by contrast, with its weak actus reus element of only acting to cause a consequence, raises questions over laws banning consensual euthanasia.1 Euthanasia is an act of killing but without the common law consequence of homicide, the violation of the right to life. This conundrum is avoided in halacha, as the victim is not free to determine the criminality of an act and cannot consent to an act of euthanasia because halacha turns upon the intrinsic nature of an act or ma’asa.2 

Under the common law, consent categorically redefines an otherwise criminal act of theft. In halacha, a thief is held civilly liable. Common law, which does not punish for intrinsic acts, requiring a weak actus reus element, criminalizes the consequential deprivation of property without consent. Halacha, with its strong ma’asa element, does not criminally punish the act of taking possession of property without consent. The same ma’asa otherwise is not culpability when consent is given. This removes the justifiable difficulty of why a m’anes makes only monetary restitution.3 

Since halacha turns upon the intrinsic nature of an act, it distinguishes between direct acts and indirect acts that cause damage to property. When a party acts to damage property, he did a ma’asa of damaging. Indirect causation of damage to the property of another is forbidden4 unless it is collateral to the use of real property.5 A party can be liable for an indirect act if the damage can be constructively attributed to his ma’asa.  The rule generally is that indirect causation of damage is liable when it is certain to cause damage and that causal damage is immediately complete with the instance of an act. For example, the ma’asa of burning a negotiable instrument is not a ma’asa of damaging something of value since it has only paper value. However, the ma’asa was certain to cause, and immediately caused, the loss of its demand for payment. The act of putting a padlock on the doors of retail outlet causes the merchant to lose business, but his losses are not complete or certain at the time of the act. 

Hence, halacha, cannot bind a party to pay for damages to expectations, as discussed in Part One. The act is defined during its instance of existence and future interests are simply not certain or present. Expectations can be preserved by affirmative action restoring the parties and their property to their original positions. A party is liable for the act of destroying property, not for his inaction to prevent future damage. 

Finally, a worker who quits a job in perishable goods or preparing for a special event such as a wedding is liable for the cost of hiring a replacement but not for the damages.6 He was committed to perform the service for which his opposing party relied, but his liability extends only to performance, not to losses incurred through his breach, and certainly not to expected profits. A written liquidation clause might make a kinyan on his work-product, but not on expectations of profit unrelated to the value of the service promised.7 The expectancy interest of awarding profits is a fiction of the common law. 

Part One can be found at: http://www.thelakewoodscoop.com/news/2013/01/halacha-and-the-common-law.html

Part Two can be found at: http://www.thelakewoodscoop.com/news/2013/01/halacha-and-the-common-law-part-2-contracts-and-kinyan.html 

Endnotes: 

1. Vacco v. Quill, 521 U.S. 793 (1997) upheld the traditional distinction between an omission such as withdrawal of treatment, and assisted suicide, in which an act is committed. Note however, the satisfaction of actus reus by breaching or causing a breach of duty. A doctor who turns off a respirator at the request of a patient “is to be differentiated from that of, for example, an interloper who maliciously switches off a life support machine because, although the interloper may perform exactly the same act as the doctor who discontinues life support, his doing so constitutes interference with the life-prolonging treatment then being administered by the doctor. Accordingly, whereas the doctor in discontinuing life support is simply allowing his patent to die of his pre-existing condition, the interloper is actively intervening to stop the doctor from prolonging the patient’s life, and such conduct cannot possibly be categorized and an omission.” Barber v Superior Court, 147 Ca. App. 3d 1006 (1983).

2. Common law homicide was traditionally defined as killing a human in being. Recently, some states codified feticide as homicide so that the actus reus element is causing the death of a victim without consent of his mother! “‘Individual’ means a human being who is alive, including an unborn child at every stage of gestation from fertilization until birth.” Tex. Penal Code Ann. 1.07.

3. Note however, in 22 Deuteronomy 29 the victim has the choice of remedy either forcing the m’anos to marry her for life or a giving a full divorce settlement c’mohar ha’b’sulos as in 22 Exodus 16.

4. Bava Metziah 23a: “This should be cited-Causation of damage is forbidden.”

5.Baba Basra 25b: “Rabbi Yosi said, ‘Even though a pit was dug before a tree was planted [and its roots consequently damaged the pit], the tree does not have to be cut down because the rule is: this party can dig on his property and the other party can plant on his property.’  And Rabbi Yehuda said in the name of Shmuel,  ‘The halacha is in accord with Rabbi Yosi.’ And Rabbi Ashi said, ‘When we were in the house of Rabbi Cahana, we said that Rabbi Yosi admits to a party’s liability in the case of shooting arrows (when the property owner directly causes the nuisance).”

6. 333 Choshen Mishpat 6. A worker is like an arev guaranteeing the completion of the job but not expectations.  See Gra 35: “They do not become shomrim, and anyone who is not a shomar is not liable for negligence. See also the opinion that the worker is liable because of garmi for loss of the perishable goods, but not for expectancies.

7. Baba Metzia 102b: “A party accepted land from his fellow on terms that if he left it fallow, he pays 1000 zuz. . . . Rava said, ‘this is asmachta and there is no kinyan for asmacta.’ And according to Rava, what is the difference between this and the law we learned that if a party makes terms that if he leaves the land fallow and does not work it, he will pay adequate damages [for not planting]? There he did not exaggerate, here since he included an extra amount the land owner was not entitled, it was a mere exaggeration.”