2 - Tort Liability in Maimonides’ Code:

Summary

In Chapter 2 we will present the difficulties facing those who seek to understand Maimonides’ tort theory as it appears in the Code alone, and according to the common interpretation (the “yeshivah reading”). Several contemporary scholars, as well as rabbis from the Lithuanian yeshivot, identified a different element as an alternative to the element of peshiah, i.e., the element of ownership, and some say ownership and strict liability, by virtue of which liability is imposed for damage caused by a person’s property. We will examine this approach critically and conclude that it does not accurately reflect Maimonides’ position, for it raises serious difficulties, both conceptual-principled and exegetical. We will point to a trend of new explanations of the Jewish sources through the speculum of the common tort theories in the twentieth century in the world of Jewish law. Chapter 2 will leave us with many open questions, which will be answered in the subsequent chapters. The book contains three main parts: (a) Questions; (b) Answers; and (c) Dialogue. Chapter 2 presents the questions to be dealt with in the book. Chapters 3–6 supply answers, and Chapters 7–8 offer a dialogue between Maimonides and various contemporary tort theories.