Jewish Law and the Concept of Negligence

Abstract

For over a century scholars have maintained that Jewish tort law includes a doctrine of negligence. Some have suggested that only part of this law is based on negligence and that other parts are based strict liability. Others argue that all Jewish tort law is founded on the concept of negligence. Some make the case that parts of Jewish law resemble Learned Hand’s formula.

The article suggests that this is not correct. The variety of rules found in the Talmud and other classical sources can be better explained as rules of liability based on either custom or a search the cheapest cost avoider rather than establishing a standard of care.

Negligence in the sense of reasonable care in the circumstances has entered modern Jewish law by assimilating values of the surrounding culture. This can be seen particularly in the area of medical malpractice.

Keywords: Jewish Law, Torts, Legal History