JUSTICE - No. 65

22 No. 65 JUSTICE explicate its nature. The emphasis of the connection between“pestilence” and a plague that is not a “mere” disease but can actually result in death is also found in sources of the Sages. For example, the Mishna in Ta’anit (chap. 3, Mishna 4) enumerates natural phenomena for which fasts must be prescribed, including the disease of “pestilence” [dever]. In a “baraita” (designates a tradition in the Jewish oral law not incorporated in the Mishnah) quoted in the Talmud (Ta’anit 21a-b), there is a more complex development of this “test” regarding when a fast should be declared. In the Amoraic sources, and in later sources based on them, indices were added that might influence the declaration of a fast, such as “caravans moving from place to place” that would likely spread the disease. In the “Mishne Tora,” the Rambam summarizes the matter as follows: What constitutes an epidemic [dever]? In a city of 500 people where three people die on three consecutive days, this is considered to be an epidemic. If they die on one day or on four days, it is not considered an epidemic [because it is assumed that this was some coincidental phenomenon and not an actual epidemic – Rashi]. In a city of 1000 people [where] there were six who died on three consecutive days – [it is called] an epidemic. If they died on one day or on four days, this is not an epidemic. And so forth according to this accounting. And the women and children and the elderly who no longer work are not included in the census of the number of people in the city for this purpose. If there is an epidemic in the Land of Israel – the Jewish communities in the diaspora fast for them. If there is an epidemic in one place and caravans come and go from it to another place – [the people] in both places fast, even if they are remote from each other. 11 We see that “one generation passes away and a generation comes; and the earth abides forever.”The days of an epidemic seem to last an eternity, and despite the change of eras and the passage of time, the ways halakhic and legal scholars dealt with questions pertaining to their own times find an echo in our present- day experience. The Legal Ramifications In the legal sphere, a distinction must be made between orders or guidelines set forth at the outset that deal primarily with preventing the spread of the epidemic, and the legal issues that result from the epidemic. Among the latter category are contractual and property claims, many of which deal with “frustration of the contract” or a property transaction with an allegation that the epidemic constitutes an act of God. There are also class actions 12 or tort actions for “mass malfeasance.”These include actions against someone with a contagious illness who caused the spread of the disease, or against someone who, in spite of his duty pursuant to law or an agreement to prevent the spread of disease, negligently failed to fulfill that duty, thereby endangering the health of the wider public with subsequent social implications. The spread of a virus may have criminal consequences as well. For example, section 218 of the Israel Criminal Code, 5737-1977, states that one who negligently commits an act which spreads a life-threatening disease is liable to three years imprisonment (and if the act was committed with malicious intent, seven years). The behavioral element of the criminal offense focuses upon the commission of an act that includes a risk that others will contract a life-threatening disease. 13 Alongside the distinction between the fields of law, a distinction must be made in the area of prevention between sources primarily aimed at providing general good advice, a mere recommendation, and binding normative instructions. Similarly, it is appropriate to 11. Rambam, M ISHNE T ORA , Hilkhot Ta’anit, chap. 2, halakhot 1, 5-6. 12. See e.g. Class Action (DC Center) 33359-06-12, Zavida v. Beilinson Medical Center, Nov. 7, 2013 (an action due to a test for HIV performed in the hospital with an instrument that had not been sufficiently sterilized), and the discussion of this case in A. Plint and H. Winitzsky, C LASS A CTIONS (Nevo, 2017), p. 205. 13. See e.g. CrimC (Be’er Sheva) 1326/92, State of Israel v. Pelansia, Nov. 26, 1997, in which a person with AIDS was convicted of having unprotected sexual relations with a minor without informing her that he was sick. Judge Hendel’s decision includes a comprehensive discussion of the legal issues and he cited decisions rendered in the U.S. involving similar cases in which the charge was attempted murder; he also cited several Jewish law sources regarding this issue.