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August 31, 2015 / 16 Elul, 5775
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Virus Attachment (Part Two)

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Rabbi Dayan asked Ruby and Zev to sit down. “Remind me what the issue was,” he said. “It’s been a while since we spoke.”

“Zev sent me a computer virus as an email attachment,” said Ruby. “Supposedly, the file was a ‘helpful computer program,’ which he told me to install. The file was a virus, though; when I clicked on it, it attacked my computer! The repair cost $250. I think that Zev should pay for the repair.”

“Did you send the file to Ruby?” Rabbi Dayan asked Zev. “Were you aware that it was a virus?”

“Yes, I was trying to get even with him,” acknowledged Zev. “Ruby borrowed my notes before a test and refused to return them on time, causing me to do poorly on the test.”

Rabbi Dayan turned to Ruby. “Refusing to return a borrowed item borders on theft,” he said. “It was very wrong of you to withhold the notes. You owe Zev a sincere apology, especially since you ruined his grade.”

Rabbi Dayan then turned to Zev. “Ruby’s wrong does not give you the right to damage him, though,” he admonished him. “In addition to possible liability for damage, it’s also a clear violation of the prohibition against revenge.”

Ruby and Zev sat silent for a moment, each reflecting on what he had done.

Finally, Zev spoke up. “Am I liable for the repair?” he asked.

“I mentioned to Ruby that infecting a computer with a virus is considered doing damage,” said Rabbi Dayan. “However, there is an issue here that needs to be clarified. Let me share with you another question that came my way.”

Ruby and Zev listened intently. “There was a person who owned an animal which his neighbor objected to,” Rabbi Dayan said. “The neighbor decided to get rid of the animal, so he left some food with poison near the animal. The animal ate the food and died. The owner sued the neighbor for killing his animal. What do you say about this case?”

“I would say he’s liable,” said Zev. “He poisoned the animal.”

“I’m not so sure,” objected Ruby. “The neighbor didn’t actually kill the animal. Although he put out the poison, the animal chose to eat the food.”

“Animals don’t exactly have choice,” reasoned Zev. “If they see food, they eat. Anyway, even if the neighbor didn’t directly kill the animal, he certainly brought about the animal’s death.”

“But is that enough to hold him liable?” argued Ruby. He turned to Rabbi Dayan.

“The Gemara [B.K. 47b; 56a] teaches that a person who places poison before an animal is considered grama,” answered Rabbi Dayan. “The animal did not have to eat the poison food. Therefore, the neighbor is not legally liable in beis din, but is responsible b’dinei shamayim. This means that he has a strong moral liability to pay, albeit not enforceable in beis din.” (Shach 386:23; 32:2)

“I still don’t understand,” said Zev. “Since the neighbor expects the animal to eat the poisoned food, why isn’t there a full legal liability?”

“The truth is, the Rosh indicates that the person is exempt only if it was unusual for the animal to eat,” explained Rabbi Dayan. “For example, if the poison was not regular food or if the animal overate. However, Tosfos explains that although the person placed danger before animal, since the animal caused injury to itself through its action of eating, we cannot obligate the person.”

“What does all this have to do with our case of a virus attachment?” asked Ruby.

“In the typical case, e-mail viruses are not self-opening,” explained Rabbi Dayan. “Although Zev sent you the computer virus, you had to click on it in order to activate it. Many contemporary authorities compare this to placing poison before the animal. Just as there it is not possible to impose a legal liability because the animal chose to eat the food and brought the damage upon itself, so too, you chose to click on the file and thereby activate the virus.”

“So where does that leave us?” asked Zev.

“Our case would similarly be one of grama, like placing poison before the animal,” said Rabbi Dayan. “Therefore, it is not possible to impose a legal liability on Zev, but he has a chiyuv b’dinei shamayim to pay for the repair.” (See Mishpetei HaTorah B.K. #67; Shimru Mishpat 2:71)

“Furthermore, people nowadays are aware of computer viruses and of the need to be careful when opening attachment files, especially with .exe endings,” concluded Rabbi Dayan. “An outdated or free version of anti-virus often does not provide full protection. Therefore, there may be some element of neglect on Ruby’s part. However, this is insufficient to exempt Zev from his strong moral obligation to pay for the damage he intended.”

About the Author: Rabbi Meir Orlian is a faculty member of the Business Halacha Institute, headed by HaRav Chaim Kohn, a noted dayan. To receive BHI’s free newsletter, Business Weekly, send an e-mail to subscribe@businesshalacha.com. For questions regarding business halacha issues, or to bring a BHI lecturer to your business or shul, call the confidential hotline at 877-845-8455 or e-mail ask@businesshalacha.com.


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