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Suing Your Rabbi: Clergy Malpractice in Jewish Law
Rabbi Mark Dratch

While the "stumbling block" injunction prohibits the offering of bad advice, it has only moral value and is not actionable in a Jewish court, for the halacha regards "words" - as opposed to "deeds" - as unactionable.¹⁸

Cause for a claim might exist, however, as an actionable tort, if there is a clear and direct relationship between the professional advisor's counsel and the resultant damage.

As a rule, one is liable for the direct and negligent damage he causes to another's person or property¹⁹ and exempt from indirect, secondary damages (gerama).²⁰ Thus, in order for a person to be liable for injuries he caused, his action must be not only the cause in fact - meeting the sine qua non or "but for" test (i.e., but for the fact that the defendant so conducted himself the injuries would not have resulted) - but his action must also be the proximate (i.e., foreseeable and direct) cause of the tort. Unless proximate cause is proved, the tort is considered gerama and the malfeasor is exempt from responsibility. Thus, the Mishnah, Bava Kama 59b:

if one person [first]supplies the fire and another the wood, he who supplies the wood is liable. But where another person came along and fanned the flame the one who fanned the flame is liable. If it was the wind that fanned it, all are exempt.

In the talmudic analysis of the last clause of this Mishnah, Bava Kamma 60a, Rava explains that the firemakers are exempt only when an unusual, unforeseen wind spreads the fire and, hence, the proximate cause criterion has not been fufilled. When normal conditions prevail, however, the spread of the fire is foreseeable and the firemaker is liable; the participat1on of a normal wind is no excuse. R. Ashi, however, disagrees and holds that even in the presence of normal wind conditions the firemakers are exonerated. The reason for the exemption in fanning the fire with the help of the wind is that his action "should be considered merely as an indirect cause (gerama), and gerama in the case of damage carries no liability."

A third class of torts, conceptually situated between the liable direct damage and the exempt indirect cause (gerama) categories is that of garmi. Examples of garmi damage include: burning another's bond, thus preventing him from collecting a debt; a money appraiser's making an erroneous evaluation of coins, causing financial loss to his client; and informing bandits of another's property, causing it to be stolen. Major essays elucidating the nature of garmi have been composed by such rabbinic giants as Raimban (R. Moses b. Nachman, 1194-1270)²¹ and R. Shabbetai Cohen (1621-1663) known popularly as Shach, the accronym of his major work Siftei Cohen.²² Nevertheless, as Shalom Albeck has correctly observed, a precise explication of the differences between the exempt gerama and liable garmi torts has eluded talmudic commentators.²³ Some authorities maintain that the result of a garmi act has greater immediacy than that of gerama²⁴, or that it has greater proximity to the cause,²⁵ or greater foreseeablity.²⁶ Others, despairing of finding a cohesive and consistent conceptual framework for the two notions, hold that there is, indeed, no difference between them and that certain actions are held liable as garmi because of their frequency and a government's need to protect the general welfare of society.²⁷

Views differ as to the nature of the liability of garmi as well. Some opine that one who commits such an act is not liable for damages, while others declare him responsible.²⁸ Even those who hold him liable - and that is the accepted halacha - differ as to whether such obligation is biblically prescribed as compensation for damages caused,²⁹ or whether it is merely a statutory rabbinically enacted punitive amercement.³⁰

With the preceding as a general introduction to the laws of damages, let us proceed to the talmudic case of the money appraiser, Bava Kamma 99b-lOOa, that will serve as the focus of our discussion of clergy counseling malpractice:

It was stated: If a dinar was shown to a money appraiser [and he recommended it as good] but it was subsequently found to be bad, in one Baraita it was taught that if he was an expert he is exempt but if an amateur he is liable, whereas in another Baraita it was taught that whether he was an expert or an amateur he is liable. R. Papa stated: The ruling that in the case of an expert he would be exempt refers to such as Dankho and Issur who needed no [further] instruction whatever, but who made a mistake regarding a new mintage at the time when the coin had just [for the first time] come from the mint.

The money appraiser is acting in the capacity of an advisor, counseling inquirers as to the validity and the value of coins. ³¹ If coins accepted at one value based upon his evaluation are found to be of a different value, and hence, financial loss accrues, the advisor is responsible for contributory damages (garmi). If the appraiser operates in an official, authoritative capacity such that the inquirer is compelled to accept the coin approved by the expert, a direct link is created between the counsel and the loss, and his status is comparable to that of a judge who makes an improper judgment.³² In cases in which a person is not bound by the appraiser's evaluation, the Talmud posits another factor which creates a link between the appraisal and the damages.

Resh Lakish showed a dinar to R. Eleazar who told him it was good. He said to him, "Chazi de'alach ka samchina, Behold, I rely upon you." He replied, "Suppose you do rely upon me, what of it? Do you think that if it was found bad that I would have to exchange it [for a good one]? Did not you yourself state that it was R. Meir [alone] who adjudicates garmi?" ...But he said to him, "No, R. Meir maintained so and we do hold with him."

The statement chazi de'alach ka samchina (Behold, I rely upon you) is significant, its articulation creating a garmi relationship between the money appraiser's advice and the financial loss. While some Rishonim (medieval Talmudists) posit that liability is dependent on the articulation of this intent,³³ most authorities agree that liability is incurred even when such reliance can reasonably be assumed. ³⁴ If such a provision is made, or can be reasonbaly assumed, the money appraiser is liable under the category of garmi. Similarly, such an assumption in the rabbi-counselee relationship may create a sufficient link between the action and the tort so as to create rabbinic liability.

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