Question: Is a person liable to pay damages for torts performed when drunk?
Short Answer: Yes, a drunk is liable for damages. While there used to be a possible exception on Purim, many poskim severely limit this exemption nowadays.
Explanation:
I. The Source
The Mishnah (Bava Kama 26a) writes that a person is always a “muad” and thus liable to pay full damages if he damages, regardless of whether he damages “b’shogeig” (accidentally) or “b’meizid” (on purpose), or whether he damages while awake or during his sleep.
The Gemara (Bava Kama 26b) adds that one is even liable for damage done under “oneis” (when unavoidable). As discussed previously (see Article #2), there is a dispute whether one is liable even for oneis gamur.
Based on the above, one who gets drunk and damages would seemingly be liable, as well. Indeed, the Rambam (Hilchos Choveil U’Mazik 1:11) writes that one is liable for damages done when he was drunk.
II. How Drunk?
But are there any exceptions to this rule? Is a drunk always liable?
The Gemara (Eiruvin 65a) holds that a drunk is patur from davening. The Gemara then notes that the Jewish people will have a good “excuse” to tell Hashem about why they didn’t fulfill mitzvos properly, as the pasuk in Yeshayahu refers to the B’nei Yisrael as “drunk.” The Gemara asks on this assumption, based on a Tosefta that states that a drunk’s business dealings are valid and his actions punishable? The Gemara gives two answers. First, really a drunk is liable for all, but he is just exempt from davening, and thus our “excuse” is limited to davening. Second, there are different types of drunks: One who is so drunk “like Lot” (hereinafter, “Lot drunk”) is “patur mi’kulam” – completely exempt from everything.
The simple implication of the second answer in the Gemara is that a drunk is not liable for damages caused when he is “Lot drunk.” This appears to contradict the earlier Rambam, which implied that all drunks are liable. Indeed, the Shulchan Aruch (Choshen Mishpat 235:22) codifies this Gemara, that someone who is “Lot drunk” is not liable for his actions, just like a shoteh (a legal “fool”) is exempt. Notably, the Shulchan Aruch never opines on the earlier halachah codified by the Rambam – whether any drunk is liable for damages. See Pischei Choshen (N’zikin 1:10, n.28).
III. The T’shuvos HaBach
The Bach (Shu”t Yeshanos 62) addresses this Gemara. The Bach was presented with a case by a wedding (or sheva brachos) where someone threw a glass that shattered in the eye of one of the attendees, thereby blinding the attendee. The wrongdoer defended himself that he was “Lot drunk” and therefore not liable based on the Gemara (above), which exempted “Lot drunks” from all liabilities. The Bach responded that he was liable because that Gemara is limited to the items listed therein. In other words, a “Lot drunk” is only exempt from the enumerated items: His business deals are vitiated and his actions deserving of malkos go unpunished.
However, the Bach is clear that, with respect to torts, a “Lot drunk” is liable. Indeed, the Bach explains that it was his own fault that he got himself this drunk in the first place. Who forced him to get so drunk? At best, the “Lot drunk” is an oneis like someone who damages while sleeping. Yet, such a person is liable for his damages. See also Maaseh Rokeach (on Rambam, ibid) who explains similarly.
Likewise, the Maharshal (Yam Shel Shlomo, Bava Kama 3:3) writes that the Gemara only exempts a “Lot drunk” from the enumerated items, not from liability for his torts. A “Lot drunk” is liable for not preventing his drunkenness. If he were exempt, there is nothing preventing a person from drinking excessively near his “enemy’s” property and doing damage while “Lot drunk.”
IV. Rav Chaim Kanievsky’s Chidush
The sefer Binas HaMishpat (siman 14), notes that Rav Chaim Kanievsky zt”l (Kiyas Melech, Choveil U’Mazik 1:11) appears to disagree and hold that a “Lot drunk” who damages is not liable. Rav Chaim cites the Rambam (above) that holds that a drunk is liable for damages. Rav Chaim notes that the Midrash (Mishlei) appears to contradict this ruling. The pasuk (Mishlei 23:29), in discussing a drunk, states “l’mi p’tza’im chinam.” The midrash comments that this refers to a drunk who walks around damaging and getting away with it, as he is not liable.
Rav Chaim answers that the midrash is not a contradiction to the Rambam, as the midrash is discussing a “Lot drunk,” while the Rambam is discussing other types of drunks who still have some control over their actions. Thus, Rav Chaim appears to hold that a “Lot drunk” is not liable for torts performed while in such a stupor. This is against the ruling of the Bach and the Maharshal.
Notably, the Maanei Lashon (Vol. 5, p. 288) likewise paskens that a “Lot drunk” is not liable, and that even the Ramban (who holds an oneis gamur is liable, see Article #2) agrees here. Since the drunk was allowed to get drunk, he becomes like a shoteh and is now exempt. [This author thinks this is a big chidush and the Maanei Lashon does not cite the contrary Bach and Maharshal].
The Binas HaMishpat himself suggests that the midrash is not a contradiction, because it only means that the drunk is exempt from damages WHILE he is drunk. Certainly, after he sobers up, he must pay damages for torts performed when drunk.
V. A Purim Leniency
There is one potential exception to a drunk being liable for his damages. The Rama (Orach Chayim 695:2) writes that some hold that a drunk who damages because of simchas Purim (i.e., drunk on Purim) is not liable. The Rama (Choshen Mishpat 378:9) likewise writes that the minhag is to not hold liable those who damage during “riding games” in front of a chasan and kallah. However, the Rama adds that Beis Din can create liability if things get out of hand.
Interestingly, the Mishnah B’rurah (Orach Chayim 695:13) cites the Bach who limits this exemption to small amounts of damages. A person performing a mitzvah of simchah is still liable for larger damage amounts. Moreover, the Aruch HaShulchan (Orach Chayim 695:10) writes that nowadays we don’t have such levels of happiness and therefore all are liable.
Rabbi Ephraim Glatt, Esq. is the Associate Rabbi at the Young Israel of Kew Gardens Hills, and he is a Partner at McGrail & Bensinger LLP, specializing in commercial litigation. Questions? Comments? Email This email address is being protected from spambots. You need JavaScript enabled to view it..
