7 - Maimonides’ Standard of Care:

Summary

Chapter 7 attempts to define accurately the standard of care adopted by Maimonides in his Code with respect to four categories of damage: (1) damage caused by a person to the property of another, (2) damage caused by a person who injures another, (3) damage caused by property, and (4) murder. In relation to each of these four categories, Maimonides proposed a standard of care that lies on the scale between fault, negligence, and strict liability. A careful examination of Maimonides’ writings reveals that he favored different liability regimes for different categories of damage. We present a scheme that illustrates Maimonides’ differential model and explains its rationale with respect to the hierarchy in the different standards of care applied in different cases. We also describe the historical background, circumstances, and nature of the tortfeasors in Maimonides’ time and in the contemporary era. This is essential for an understanding of the differential liability model in itself and as compared to contemporary models. Maimonides’ tort theory, we argue, is based upon a fundamental distinction between two questions: (1) upon whom should tort liability be imposed and (2) what is the standard of care that should be imposed in each case.