If there is a pit of two partners, and the first one passed by and did not cover it, and then the second one passed by it and did not cover it, the second one is liable to pay for the damage it causes.But the first one was also negligent! In this case, he handed over the pit's cover to the second one.
But how can a pit of two partners exist? The one who completed it is liable! In this case, one dug a pit nine hand-breadths deep and then they both simultaneously uprooted a clump of earth from its bottom.
Art: Ditchdiggers by Vincent Van Gogh
9 comments:
Another interesting argument. The burden seems to be that partnership, presumably because it creates an entity that is more powerful than an individual, necessarily acquires additional responsibilities. The first step, would be to hold partners individually liable. You can't hide your responsibility behind the collective, (shades of Nuremburg!).
The passage goes farther, in saying "how can a pit of two partners exist? The one who completed it is liable?" Effectively, this means that only in the rarest cases does the law recognize a partnership at all.
I would only comment that this is a law conducive to a very traditional, conservative society. If you can't form a corporation to shed liability, you can only take on the liability you can shoulder individually. I can understand why these guys never built cathedrals - it's amazing they were even able to build a nice synagogue.
These partners are only partners in the well, from which they draw water. They are not partners for paying damages for liability which came about through negligence. This ruling discusses the assumed ownership of the well in regards to damages.
The pit is a special case anyway, because here the person is liable for digging it in the public domain, where he is not an owner at all, but is considered as an owner for liability. We assume that two people can't dig together, and this is why we are hard-pressed to find a situation in which the ruling applies.
A corporation would work. Any agreement that is accepted as binding by the parties is valid, if it is not illegal. Talmud discusses assumptions in the cases where there was no agreement, oral or written, or if it didn't foresee the case that came up.
Synagogues are a miracle for a different reason – because they should be built without ulterior motives, and that is hard.
Mark,
My point about corporations isn't that this passage appears to prohibit creating them; it's that this passage appears to prohibit gaining protection from liability by doing so. Protection from liability is the sin qua non of corporations, because without it, the leverage you get from participating in corporate activities is matched by increased liability. Here's an analogy. Suppose you wanted to dig a gold mine. Chances are, you don't have the physical of financial means to dig deeply enough to make money from it. But you could participate in a mining company, say by buying stock, and take advantage of the corporate activity to enrich yourself. The hole you dig for yourself has the disadvantage of being too shallow to reach the gold. However, it has the advantage of being so shallow that it's very unlikely to foul a river, undermine a town, or collapse, killing scores of minors. The corporate goldmine has the opposite set of advantages and disadvantages as the personal one. But if you as a member of the corporation are "jointly and severally liable" for the actions of the corporation, then you would never participate. Just as you don't have the strength to dig the mine yourself, you don't have the financial strength to bear the liability.
Matt, I believe the first corporations were invented by the English so presumably the concept didn't exist at the time of the Talmud. A quick google search "corporation in halacha" brought up some rabbinic opinions that derive some corporate law applications from other fields (tithing, etc.). On a simple level it would seem that the validity of corporate law and associated limitation of liability would derive its halachik validity from the concept of "dina dimalchuta dina", in english "the law of the kingdom is the law", which establishes a halachik principle that for civil financial matters the governing law of a jurisdiction acquires halachik authority. One explanation for this mechanism is that all of the citizens of that jurisdiction accept the binding authority of the civil financial laws and the invests them with halachik binding authority. Accordingly, if a culture that recognizes the corporation the halacha would follow.
Bentzion,
Great to see you weighing in on this. Not that I'm much of an expert on either corporate or halakhic law, but it seems to me that dina dimalchuta dina is meant to bind Jews to the civil law, not to substitute civil for halakhic law. There are four possible cases:
1. Halakhic and secular law pertain to different sorts of activities. They operate in parallel but never intersect. Adjudicating between them is no problem.
2. Secular law expands or strengthens the strictures of Halakhic law. The Torah says you can't drive on Shabbat; the DMV says you can't drive any other day either unless you get a drivers license. Adjudicating is again no problem: you don't drive on Shabbat and you get a driver's license for the other days.
3. Halakhic and secular law conflict. As a conscripted soldier, you must fight on Shabbat.... Adjudicating here is fraught with problems.
Then you get case #4, where responsibilities under Halakhic law exceed secular. That's this case of Bava Kamma 51. Secular corporate law says that as a stockholder in the pit digging company, I happen to walk by our public pit and fail to cover it. Someone falls in. Can't sue me - I'm just a stockholder in a corporation. But BK 51 says "the second one passed by it and did not cover it, the second one is liable to pay for the damage that it does." This is the flip side of case #2, and it would seem straightforward to adjudicate the same way: You've got your responsibilities as a citizen, but you've also got your responsibilities as a Jew; you ARE liable.
The problem with that logic is the conclusion it leads to: As an observant Jew, you should not be free to take advantage of the indemnity provided by secular corporate law.
But again, I'm arguing from pure ignorance. Tell me where I'm going wrong.
Matt and Ben, a great discussion, and I think because of it I now have a clear answer.
There are two questions about a corporation: what can be done to it, and what it can do to others. Matt's question is in the area of “what can be done to it,” or what claims can be advanced against a corporation. The answer to this is more straightforward.
Any state or the country in which the corporation operates can force upon its citizens the acceptance of the fact that they renounce all personal claims against the shareholders. Just as a person born in a state is automatically liable to all the state laws, and just as a motorist crossing a state line automatically agrees to the road laws of the state he has just entered, so too the citizens of the state or country agree to renounce all claims against the shareholders of the corporation and only hold the corporation's assets liable to damages and debt obligations.
This does not contradict the Talmud law. Ordinarily, if someone stipulates a condition that goes against the Torah, such condition is void. For example, if a guy marries a woman on the condition that she renounces her conjugal rights, and she agrees to that, the marriage takes effect but his condition is null and void. He tried to stipulate against the Torah, and this didn't work, but the rest of the conditions stand.
In money matters it is different. Any person can renounce his money claims. He can give presents. He can obligate himself to pay by just saying “I owe you” in front of witnesses. Therefore, this civil jurisdiction doesn't' go against the Torah. Since it does not, it in fact becomes the law of the Torah. You may ask, what's the difference, either way I have no claims? The difference is that my claims are now canceled by the Torah, so that I can't reclaim from the shareholders even if I am physically able to.
Neither is corporation law discriminatory, so another possible objections falls off.
Thus far, we have established how limited liability protects shareholders from any claims. For example, in the case of a pit, the Torah law may be that the digger is liable, or the foreman is liable, or the CEO is liable. But since I renounced the claims, none of them are liable, and only the corporation's assets are.
The other side of the question is, what is the corporation allowed to do to the world. In civil law, this doesn't come up, because if there is no punishment, everything is allowed. In the Talmud there are a few approaches. The first one doesn't recognize the corporation as means of escaping prohibition. If I as an individual am not allowed to take interest from Jews, or if I am not allowed to delay payment to workers or to cause damage, then the corporation has not more right to do this – but the obligation is only moral, and I may have to pay in the next reincarnation or explain it after death. Who is not allowed? Usually the one who is doing the action, because “there is no messenger for transgression” and “the words of the Master and the words of the student, which one does one listen to?” However, sometimes the concept of delegation does work, like in misappropriation of sacred property – but by now we are farther away from the question than we wanted to be.
The second point of view is that corporation is a legal entity in some respects, and for example if the majority of the shareholders are not Jewish, it can loan money to Jews on interest. There again, this is not the point of Matt's original question. You see however, that the moral obligation might be a powerful concept to limit wrongdoings, in addition to punishments, and this why there are articles on the advisability of the Jewish “obligations” approach as opposed to the American “rights” approach.
Mark,
Your argument on my question is elegant and persuasive. Thanks. Your argument on corporate obligations is murkier, and I've got to think about it more.
Matt, thank you :)
Regarding what you said about corporate responsibility, compare this to two partners. If one says to the other, "go and steal," they are both liable. This illustrates how a corporation is different.
It is interesting though how partner liability for theft works. I got it from studying today's daf (Bava Metzia 8). The sender is liable not for the words with which he sends the thief to steal, but rather when the thief lifts the object, he acquires it on his behalf, and on behalf his partner.
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