TRESPASS:

By: Executive Committee of the Editorial Board., Lewis N. Dembitz

Injury done directly, in most cases purposely, to the person or property of another. Trespass on the person has been discussed under the head of Assault and Battery: it remains to speak of the Talmudic law of trespass on property.

According to the Mishnah (B. Ḳ. ii. 6), "a man is always forewarned." That is, like the master of the forewarned ox (see Goring Ox), he is always liable for the whole damage arising from his direct act; and the words are added: "whether awake or asleep, whether acting of purpose or from ignorance."

The Scripture prescribes punishment for only one typical case ("ab") of trespass on property (Lev. xxiv. 8, Hebr.): "And he who kills a domestic animal shall make it good, life for life"; and (ib. verse 21): "And he who smites a beast shall make it good." This is extended by the oral law to all cases of direct harm done to property; but the above-quoted section of the Mishnah also singles out as a case, "whether he has blinded one's eye, or has broken his vessel, he pays full damage." In other places the Mishnah or Baraita speaks of tearing a person's clothes, or destroying his crops or plants, or killing his beast. Only one exception is made: viz., when the trespass constitutes otherwise a death-deserving, sinful act, there is no liability to make the damage good in money (see the case of the burglar in Sanh. viii. 6).

Not only is sleep or ignorance no defense against the charge of trespass, but unwillingness or acting under compulsion () does not free from liability—for instance, where one stumbles or falls from the roof and in so doing hurts a person or breaks a thing—unless the hurtful movement was made under irresistible force and was not caused by lack of care (B. Ḳ. 26-28). This is illustrated in the Mishnah (B. Ḳ. iii. 4-5) thus:

But when the injurious act is committed on the grounds of the injuring party, he who commits it is liable only for what he does wilfully, not for what he does unwittingly or involuntarily; such at least is the opinion of Maimonides, taken from post-Talmudic authorities, though based upon hints and analogies in the Mishnah and the Baraita.

The trespasser is responsible not only for what he does with his hand or other parts of his body, or with a weapon or implement which he wields, but also for any injury which he does by throwing or shooting or by spitting. But if he casts anything on the ground (even his saliva) and injury arises therefrom afterward (e.g., where it causes a man or a beast to stumble), it is not a trespass, but is in the nature of a pit (see Jew. Encyc. i. 160b, s.v. Accident).

Where one strikes iron with a hammer so that sparks issue therefrom, by which a neighbor's house or goods are burned or otherwise damaged, it is deemed a trespass, for which the wielder of the hammer is liable. When one pushes his neighbor's beast into the water, or prevents it from leaving the water, and it is drowned, or when he locks it in a circumscribed place, where it dies from heat or from lack of air, he is liable; and thus in similar cases of death indirectly inflicted.

Where an injury does not affect the neighbor's property in the body and can not be seen—where the shape of the thing is not changed, yet the thing itself is diminished in value—it is held (Giṭ. 53b) that under the letter of the Torah there is no liability for damage; but there is a rabbinical ordinanceto the effect that the person causing the diminution in value must make it good. This would happen where things Levitically clean were defiled by the act of one not the owner; or where "wine of a heathen libation" () was mixed with another man's wine, rendering its use unlawful; or in like cases where food or drink has by the trespasser's act been made a thing forbidden under the Jewish dietary, Levitical, or other religious laws.

Where one man orders or procures another to commit a trespass, and the agent does so, both principal and agent are liable for the damage done. Where the construction of a house, or of a similar thing in which several work together, causes an injury, if those doing the several parts of the work are associated as partners therein, all are liable; but if they work as employees, each for his own wages, only the one who actually causes the injury is liable.

This case is also put: Five men have each put a burden on a beast, and it walks along; a sixth puts a further burden on it, and it stops and dies; the sixth alone is liable. If, however, the beast had stopped before the additional weight was laid on it, the sixth man goes free; but if there is doubt as to the facts, all six are liable, and the damage is divided among them; and generally, when two or more jointly have killed an animal or broken an implement, the damage is paid by them in equal parts.

All damages to property are paid in money, and are ascertained by subtracting the value of the dead beast or of the wreckage from the worth of the beast or other article before the trespass was committed. See Robbery.