Seder Nezikin (Damages)

Universal interpersonal and societal issues, rather than Jewish ritual law, are the main subject of Seder Nezikin.

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The Themes of Seder Nezikin

Seder Nezikin (damages) forms the basis for Jewish civil and criminal law.  Included in Seder Nezikin are laws of property damage, employer-employee relationships, negligence, and business partnerships, as well as laws relating to courts and punishments.  Within the Mishnah, Nezikin stands out as the seder (or order) most concerned with universal interpersonal and societal issues, rather than with issues of Jewish ritual law.  For this reason, perhaps, the discussions in this seder refer to lived experience at least as often as they refer to biblical law.

Business Transactions

seder nezikin--damagesThe first three masekhtot (tractates) of Seder Nezikin, Bava Kamma, Bava Metzia and Bava Batra--literally, the "First Gate," "Middle Gate," and "Final Gate"--focus on business transactions, lending and borrowing, joint ownership of property, renting and leasing and labor laws.  Like any body of civil law, the Mishnah is primarily concerned with creating a legal system that protects both parties, reduces or eliminates fraud, and establishes clear procedures for various types of transactions and agreements.

Laws regarding buying and selling, for instance, require that the terms of sale be clear and fair to both the buyer and seller.  Thus, Bava Batra 6:3 mandates that the seller reveal any known defects in the product for sale, but does not hold the seller responsible for defects that develop after the sale is complete:

"If one sells wine to another and it sours, the seller is not liable [and is therefore not required to refund the buyer's money], but if the seller knew that the wine would soon sour, this is considered a purchase made in error [and the seller is required to pay the buyer back]."

Enforcing the Law

Every society must, of course, not only establish civil and criminal laws, but must also create a system of punishment for those who violate these laws.  Sanhedrin (the supreme Jewish legislative body and high court in Roman times) and Makkot (“lashes”), originally a single unit, define court procedures, the types of punishments for various crimes, and the methods of carrying out these punishments.  Among the concerns of these masekhtot is the reliability of the witnesses upon whose testimony the defendant will be convicted or acquitted.  There is, within the Mishnah, a fear of convicting an innocent person, and therefore a willingness to disqualify eyewitnesses if their testimonies differ, even in regard to details not immediately relevant to the crime.  According to Sanhedrin 5:1-2:

"They used to test witnesses by asking seven questions: in what week of the year [did you observe the crime]?  In what year? In what month?  On what day of the month?  On what day?  In what hour?  In what place?  Furthermore, they would ask, Do you recognize [the defendant]?  Did you warn [the defendant of the consequences of the crime before s/he committed it]?.

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Rabbi Jill Jacobs

Rabbi Jill Jacobs is the Executive Director of Rabbis for Human Rights-North America. She previously served as the Rabbi-in-Residence for the Jewish Funds for Justice.