FAULT ():

By: Solomon Schechter, Lewis N. Dembitz

Harmful neglect of duty. The "culpa" of Roman law is treated to some extent under the heads of Accident and Bailments, the former dealing with torts arising from lack of care, the latter with the loss of goods or animals through the lack of care or the dishonesty ("dolus") of the keeper.

Another important branch of fault or culpa arises where men entrusted with material to work up, or with implements to repair, do their task badly, or disregard the instructions of the owner, or injure thethings entrusted to them. The principles governing this branch are briefly laid down in the Mishnah (B. Ḳ. ix. 3, 4); "If one has given [anything] to mechanics to repair, and they have ruined [it], they must make compensation. If a wagon, a chest, a platform, has been given to a carpenter to repair, and he has ruined it, he is held responsible. And the mason who has undertaken to take down a wall, and in doing so breaks the stones, or does damage, is likewise responsible. [If] he was tearing down on one side, and it fell on another side, he is free from liability; but if [it fell] from his stroke, he is liable. When one gives wool to a dyer and the kettle burns it, the dyer must pay the price of the wool. If he dyes it [so that it looks] ugly, then if the improvement is greater than the outlay, [the owner] pays the amount expended; if the outlay is greater than the improvement, he gives the workman the value of the improvement. [If he gives him wool] to dye black, and he dyes it red, or red and he dyes it black, R. Meïr says he [the dyer] gives him the price of the wool, [keeping the dyed wool]. R. Judah [whose opinion prevails] says: If the improvement is greater than the outlay, he [the owner] pays him [the dyer] the outlay; if the outlay is greater than the improvement, he gives the worth of the latter."

The Gemara ad locum (B. Ḳ. 98b-102a), commenting on these two sections, discusses mainly the question whether the workman, by making a change in the object on which he is working, acquires title thereto, and how this would affect the measure of his liability; but the Halakah is against the view of a change of title.

Maimonides, in "Yad," Sekirut, x. 4, and Ḥobel u-Mazziḳ, vi. 11, states the law almost in the words of the Mishnah; adding to it for greater clearness a few words from the Talmud; "Whether the owner has given to the mechanic the wagon, etc., to put a nail in [that is, to make a slight repair], or has given him the timber to make the wagon, etc., the mechanic, if he breaks the wagon, etc., must pay the value of the wagon [of course deducting his wages and outlays]." To the case of the dyer, Maimonides adds: "Or if he gives timber to a mechanic to make a chair, and he makes a bad one, or makes a bench, he must pay for a good chair. And as the workman does not acquire the ownership by change in the material, the employer can not say, 'Let him pay me for my timber or my wool'; nor can the mechanic clear himself by offering to pay the price of the material."

A baraita in the discussions on B. Ḳ. ix. 3 (99b) takes up the workman's liability for lack of skill: "If one gives wheat out to grind, and [the miller] does not bold it, but turns it into coarse meal and bran; flour to a baker, and he makes it into flat loaves; a beast to the slaughterer, and he makes a carcass of it [kills it in an unlawful way], the workman is liable, because he is a taker of hire." Maimonides quotes this (ib. x. 5), and, following the reasoning of the Talmud, adds: "Hence, if the slaughterer was an expert and slaughtered without reward, he is free from liability; but if not an expert, though he did it for nothing, he is liable. Thus, if I show a coin to a banker who is well posted, and he tells me it is good, whereas it is bad, but charges me nothing, he is not liable for the loss. But if he is not posted he is liable, though he acted for nothing; for I ought to be able to rely on a banker's opinion. And so in like matters." There is in modern law a similar rule, that a quack is liable for mistakes in medical treatment, where a regular physician would not be liable.

In referring to the mason who does harm while taking down a wall ("Yad," Hobel, vi. 11), Maimonides couples with him the Smith who starts a fire by sparks from his hammer; for a human being, he says, is always "forewarned," whether he acts wilfully or unwittingly, asleep or awake (see Accident).

Another rule connected with fault on the part of workmen entrusted with material or goods is thus stated in the Mishnah (B. M. vi. 6): "All mechanics are keepers for hire [and liable for loss or damage as such]; but all of them, when they say, 'Take thy goods and give me my money,' become gratuitous keepers. When [the owner] says, 'Keep this for me [to-day] and I will keep for you to-morrow,' he is a hired keeper. [If the owner says], 'Keep for me,' and he answers, 'It lies with me,' [he becomes] a gratuitous keeper." R. Huna, in the Talmud on this section, adds: "If he says, 'It lies before thee,' the mechanic is no longer even a gratuitous keeper" (B, M. 81b). And Maimonides ("Yad," Sekirut, ch. x.) gives these propositions as the Halakah.

The following case, however, of acting outside the line of strict law may be mentioned in this connection, though it is not noted by the codifiers: It happened to Rabba bar bar Ḥanah (others read "bar Rab Hunah") that the porters broke a cask of wine belonging to him. Then he took away their clothes in compensation. They went to Rab and complained. Whereupon he said, "Rabba, return them their clothes." The latter asked, "Is this the law?" Rab said, "Yes; as it is said, 'That thou mayest walk in the way of the good ones' (Prov. ii, 20)." He returned their clothes. Then the porters said to Rab, "We are poor and labor the whole day, and now we are hungry and have nothing." Rab then said to Rabba, "Go and pay them their wages." Rabba asked again, "Is this the law?" Rab replied, "Yes; as it is said, 'And keep the paths of the righteous'" (B. M. 83a).

As to a pawning of the finished commodity, and the pawnee's liability for a loss, see Pledges.