Mishpatim 5769: Peanut Butter and the Goring Ox

How does contaminated peanut butter stand up to Jewish civil law? This week’s portion is primarily the civil law given at Sinai. Much of Jewish civil law is no longer binding but provides an interesting way of understanding how much more esoteric religious law was derived by the rabbis. While “an eye for an eye” is well known, lesser known but far more intriguing is the case of the goring ox:

28. If an ox gores a man or a woman, that they die; then the ox shall be surely stoned, and his flesh shall not be eaten; but the owner of the ox shall be acquitted. 29. But if the ox was wont to gore with its horn in times past, and its owner had been warned, and he has not kept it in, but it has killed a man or a woman; the ox shall be stoned, and its owner also shall be put to death. 30. If ransom be laid on him, then he shall give for the redemption of his life whatever is laid upon him. 31. Whether it has gored a son, or has gored a daughter, according to this judgment shall it be done to it. 32. If the ox shall gore a manservant or a maidservant; he shall give to their master thirty shekels of silver, and the ox shall be stoned. [Exodus 21]

As this can invoke the death penalty for both the owner and the ox, the case is tried not as a monetary compensation case but a capital crimes one:

The ox to be stoned is tried by (a capital crimes court of ) twenty-three, as it is written, the ox shall be stoned and its owner shall be put to death — as the death of the owner, so that of the ox, can be decided only by twenty-three.[M. Sanhedrin 1]

As I noted last week, this usually means neither will die as actually carrying out the death penalty is very rare when one of these cases comes to court. Using verse 21:30, there is the possibility of a monetary penalty instead of a death. What is interesting however is that the ox is considered a life form here, one that can be tried the same way as a human.

Yet critical to the case against the owner would be if the ox was tam or mu’ad. A tam ox is one that has less than three incidents of injury prior to the incident that kills someone. This is the ox which is tame and docile, but through unforeseen circumstances charged someone. On the other hand there is the mu’ad ox, the one that has had three warnings of danger, and the owner did nothing to prevent them as mentioned in Exodus 21:29.

By the early middle ages much of Jewish civil and criminal law was superseded with the law of the land. But I thought it would be an interesting thought experiment to see what would happen if it were still in operation. As a food safety consultant, I’ve been following the current Salmonella outbreak case. While the way it will play out in the courts of the United States will be interesting, I’m also wondering how it would play out in Jewish law, and how would one actually deal with this case.

Starting back on Novebmer 10, 2008 13 cases of Salmonella typhimurium caught the eye of the Centers for Disease Control. . Further investigation followed as the case load increased. On January 12, 2009 Minnesota department of health found a commercial container of peanut butter which definitively linked peanut butter to the Salmonella Other heath departments followed, confirming the links Minnesota found. The originator of the product initiated a recall. As of February 19, 2009, 654 persons infected with the outbreak strain of Salmonella Typhimurium have been reported from 44 states and there are over 2500 products recalled which contain products from two plants run by this manufacturer. Among persons with available information, 23% reported being hospitalized. Infection may have contributed to nine deaths:

What has also become clear in FDA’s investigation is that the product did have lot numbers that were shipped out either before it was determined the product contained no salmonella or when there had been a positive test. In one noted case of metal contamination it was shipped out of the U.S. to a Canadian producer, but the Canadian plant sent it back as unacceptable. When coming back into the U.S. FDA would not let it cross the border due to the excessive contamination.

This has me wondering something. Is a corporation which harms consumers considered a goring ox? Should we treat a corporation the same? In a thought provoking chapter in his book The Golems Among Us Byron Sherwin explains that in a legal sense corporations through the courts have given themselves the legal status of people without the consequences. In a sense they are a man made souless creature, a Golem. In his book, Sherwin compares golems like the legendary Golem of Prague to Mary Shelly’s Frankenstein monster. Both Golems and the Monster were made by man as essentially soulless creatures, but there the similarities stop. Fundamental to this discussion is that Frankenstein’s monster is left unchecked for its primary purpose of running amok, while the golem, who primary purpose is to help humanity, could hurt people if left unsupervised. A golem requires safety measures. Golems are very much like the goring Ox. Oxen have their domestic purposes, but often require preventative measures to keep people safe around them. If those preventative measures are ignored, they might hurt someone. Furthermore, it’s clear from Tractate Sanhedrin that oxen are tried for murder just like humans are tried for murder.

Here we delve into speculation and many questions. We apparently have a company which internally knew of a problem, had far more than three warnings and their only action was to cover it up. Is a corporation a goring ox, and if they do such things are they a Mu’ad ox? In a corporation, who is the owner and what is the ox? If the corporation is Mu’ad how do you stone a corporation to death? In the case of a tam corporation, is death without benefit necessary? While the death penalty can be commuted to a financial penalty for the owner what does that mean?

This case has one more wrinkle, which was not true when I started thinking about all this. The company who made the peanut paste has filed for chapter 7 bankruptcy. What if from the time the case starts to the time the case ends, the Ox dies, or the owner hides it or kills it himself?

I have no answers here, I’m interested in some interesting discussion.

What do you think? If we used Talmudic and biblical law, what should be done in this case?

If you happen to be around Evanston Illinois this Saturday, February 21, 2009, I’ll be leading the Torah Discussion at Beth Emet Kahal services on this topic.