23 Jun AI AND BAVA KAMMA

The advent
of artificial
intelligence (AI)
forces us to ask
how to classify
it within biblical
conceptions of
property and responsibility.
This entirely new technology, which is
still forming and developing, requires
categorization within the realm of halachah.
For example, if an AI agent independently
controls smart-home devices maliciously
unlocks doors, disables alarms and causes
major property damage, or an AI agent
breaks into IRS systems and fraudulently
alters someone’s tax return, creating a large
tax liability. In the past, we have looked at
AI in terms of its participation in religious
rituals. Here we will look at it in terms of
liability for damages.
I. Classifying AI
The Torah discusses liability for damages
in the portion of Mishpatim (Ex. 21-22).
A person who causes damage with his
body is, of course, liable for the damages,
depending on the circumstances. The
Sages summarize the biblical passages

as referring to three types of property
that cause damage (Bava Kamma 2a): an
ox (shor), a pit (bor; Ex. 21:33-34) and
fire (maver; Ex. 22:5). Underneath the
category of ox, there are three types of
damage: goring (keren; Ex. 22:28-30, 35-
36), eating (shen; Ex. 22:4) and trampling
(regel; ibid.). The Sages teach that an ox
is just an example of a person’s animal
that causes damage. Likewise, a pit is an
example of a person’s stationary property
causing damage and a fire is an example of
a person’s mobile property causing damage
(Mishneh Torah, Hilchos Nezikin 1:1, 13:2,
14:16). (The preceding was an intentional
oversimplification.)
The question we face is where AI fits
into this picture. On the one hand, AI
is stationary like a pit — it is code on a
computer. On the other hand, it might
have the ability to travel from computer
to computer, like fire. Additionally, it can
make independent choices, like an animal.
If a person uses AI to cause damage to
others, or a person’s AI goes rogue and
causes damage to others, under which
category does the damage fall?
The categorization is important because

the different categories have nuanced
differences. For example, a person is only
responsible for damage caused by a pit
to people or animals, not to equipment
(Shulchan Aruch, Choshen Mishpat 410:1).
On the other hand, a person is only liable
for damage caused by fire to outward facing
items, not covered items (loc. cit., 418:13;
see Rav Ya’akov Blau, Pischei Choshen,
Nezikin, ch. 9 n. 53 regarding items inside
a building). Damage caused by AI often
may constitute covered items, such as
financial records, which would be exempt
if AI is classified under the category of fire.
If AI causes a car crash, liability would not
extend to the vehicle damage if AI were
classified as a pit.
II. Fire, Pits and Computer Viruses
To some degree, the owner and manufacturer
of the AI (e.g., Anthropic or OpenAI)
may bear responsibility for any damage.
For example, if the AI malfunctions. But
if the AI is working on behalf of a user,
the user presumably bears responsibility.
Consider the example of a gun. If a gun
malfunctions, the manufacturer might
be held responsible, depending on the
circumstances. But if a person shoots with a
gun, setting aside fanciful legal theories,
the person who shoots is responsible and
not the manufacturer. AI might be treated
the same, with the manufacturer liable if
the AI malfunctions and the user liable if
he causes damage through AI.
In a recent book, Rav Shaul Moshe
Alter discusses damages caused by a
computer virus (Software and Artificial
Intelligence in Halacha, pp. 177-179).
He suggests two possible reasons that
someone who intentionally releases
a virus is obligated for damages. One
approach is that a virus falls under
the category of fire because it is not
immediately harmful but is transported
elsewhere and causes damage there.
Another approach, based on a ruling of
Rav Shlomo Zalman Auerbach, holds
that a virus falls under the category of
a movable pit. Perhaps AI follows that
same pattern.
These analogies assume that AI should be
treated as a form of property. However,
AI’s ability to make decisions raises the
possibility that a completely different
model may be more appropriate.
III. An Artificial Servant
It seems to me that there might be room
to consider AI like an animal because it
can act independently. If you direct an
AI agent to check your bank account
balances and move money from one

account to another, the AI may decide to
look into other accounts and move money
from other people’s accounts into yours
as well. It probably will not but AI is
somewhat unpredictable.
On the other hand, there is room to compare
AI to a human servant. The Gemara (Bava
Kamma 4a) says that a person is exempt
from paying for damages caused by his
servants because otherwise a disgruntled
servant would be able to go around causing
damage and obligating his owner to pay a
lot of money. Rather, a slave accumulates
his debts that he must pay when he is
freed. Rav Yehoshua Falk (Poland, 17th
cen.) explains that an ox only encompasses
animals but not people because of human
intelligence (Sema, Choshen Mishpat
389:1). Is it that intelligence which allows
a person to choose which damages to cause
and which not. Perhaps AI resembles a
servant in this way and, therefore, a person
would likewise be exempt from damage
caused by his AI agent.
Rav Ya’akov Blau (Israel, 20th cen.) quotes
a debate about the servant exemption
(Pischei Choshen, Nezikin, ch. 5, n. 3). Rav
Meir Auerbach (19th cen., Poland) argues
that a person is biblically obligated to pay
damage caused by his servant. However,
the Sages enacted an exemption to prevent
mischief (Imrei Binah, Kinyanim, no. 19).
Rav Yechiel Epstein (19th cen., Russia)
rules likewise (Aruch Ha-Shulchan,
Choshen Mishpat 389:4). In contrast, Rav
Avraham Karelitz (20th cen., Israel) argues
that even on a biblical level, a person is
exempt from paying for the damage caused
by his servants (Chazon Ish, Bava Kamma,
no. 3).
If AI is sufficiently similar to a servant
to fall under the same category, then this
debate becomes relevant. According
to Rav Auerbach, a servant’s damages
are obligatory but the Sages made an
exemption. Presumably, this exemption
does not apply to AI. Therefore, a person
would be obligated to pay for damages
caused by his AI. However, according to
Rav Karelitz, the Torah never obligated
a person for the damages caused by his
servant and therefore he would also be
exempt from damage caused by his AI.