Siman 378

Just as it is forbidden to steal and to rob, so too it is forbidden to damage the property of one's fellow, even though no benefit comes to him from this and even if he consents to pay for the damage to the injured party [Sma], unless he needs this for his own rescue, as written in siman 274, for then he does what is necessary and pays the damage to his fellow. And likewise, even to be a "grama" (indirect cause) in damages is forbidden, whether he causes it through himself or whether he causes it through his own arrows; however, regarding the obligation of payment in beit din, there is a distinction between "garmi" and "grama," and it will be explained in siman 386, but by the laws of Heaven he is liable for every type of "grama" [Bava Kamma 55b]. And likewise, one who damages with his tongue is liable by the laws of Heaven, and an informer before a tyrant is liable also by the laws of man, and it will be explained in siman 388. And likewise, it is forbidden to damage with his sight, and he is liable by the laws of Heaven if he damaged his fellow with the look of his eye; and thus our sages, of blessed memory, said: It is forbidden for a person to stand over the field of his fellow at the time when it stands in its stalks [Bava Metzia 107a]. And likewise, all types of "hezek re'iyah" (damage of sight) are forbidden, such as looking at what his fellow does in his house and in his courtyard, as written in siman 154. And thus our sages, of blessed memory, said [Bava Kamma 30a]: He who desires to be a "chasid" (pious one) should fulfill the matters of damages, whether in damages or in the concern of robbery, interest, overreaching, and the like; for just as a person distances himself from a prohibited doubt, so too he should distance himself from a doubt of money that is not his. On the contrary, this is more severe, for regarding a prohibition, repentance and Yom Kippur atone, whereas in matters between a person and his fellow, Yom Kippur does not atone, and also repentance is not effective until he returns the stolen object and appeases him for what he pained him. And likewise, in every type of pain that a person causes his fellow, his punishment is great, and he is obligated to appease him until he forgives him. And regarding one who damages, there is also the prohibition of "bal tashchit" (do not destroy) even regarding his own property [Levush].

Every damager is obligated to pay full damage from the best of his properties, as is written in siman 419. And even if he damaged through negligence or by accident, he is liable. Our sages, of blessed memory, derived this from a verse, that one is liable for negligence as for intentionality, and for accident as for will (ibid. 26b), for a person is always forewarned, whether negligent or intentional, whether awake or asleep. Our teachers, the Rishonim, agreed that one is not liable for every accident, for in a case of absolute accident one is exempt. They gave a rule regarding this: any accident that is like a theft, one is exempt, and like a loss, one is liable (Tosafot and the Rosh, beginning of chapter HaManiach). And so it is found there in the Yerushalmi, that this case of one who sleeps is liable specifically when he slept near vessels or near a person and damaged them while he slept, he is liable. But if he slept in an empty place and another came and lay down near him or placed vessels near him, and the first damaged the second or the vessels, the first is exempt, for the second is the one who is forewarned. And so there is proof from what will be explained in siman 412 regarding one who places a jug in the public domain and another comes and trips over it and breaks it, he is exempt because it is not the way of people to look closely at the paths, see there. It follows that in a case of absolute accident, one is exempt.

But the Rambam, of blessed memory, did not distinguish between one type of unavoidable accident and another, and wrote plainly in chapter 6 of Chovel [u-Mazik] that whether he was unwitting or whether he was under an unavoidable accident [he is liable]. And even though from the words of our teachers, the authors of the Shulchan Aruch, it is implied that the Rambam also makes a distinction in this, and our teacher, the Beit Yosef, wrote so in Kesef Mishneh there, nevertheless, it is not implied so from the wording of the Rambam. And thus wrote the Maggid Mishneh and the Shach, that according to the Rambam there is no distinction. And it appears to me that the Rambam holds that since in the Gemara one who causes damage via an unavoidable accident is liable, there is no logic to distinguish between one type of unavoidable accident and another. Rather, he holds that in a place where there is another who caused this damage and he is more negligent than this one who was under an unavoidable accident, we should not obligate this one who was under an accident, but rather the one who was negligent. Therefore, when another comes and sleeps near him or placed vessels near him, the first is exempt. And so implies the wording of the Yerushalmi which says "because the second is the forewarned one." And so too regarding one who places a jug in a public domain, where this one who placed it was negligent in a place where many walk, we should not obligate this one who tripped on it and broke it. Therefore, if he placed the jug in a place where he had permission to place it, and this one tripped and broke it, he is liable. And so too if there was a recognizable cause that the damage was from Heaven, he is exempt, as will be further explained. A great principle appears from his words: that this rule that one who damages via an unavoidable accident is liable applies when he actually damaged at the time of the accident, such as if he tripped during his walking and fell on a vessel and broke it; even though tripping is not negligence, nevertheless he is liable, for "man is always forewarned." And if the vessel was placed in a place where the owner of the vessel had permission to place it, this one who tripped is liable. But if at the time he tripped he did not damage, but rather another was damaged through this, such as if he carried a jug of water and tripped and fell and the water spilled and the jug broke, and a person walked and slipped on the water or on the shards of the jug, the first is exempt, for he did not damage him with his hands, but rather he was a cause for the other to have damage through him; and since he is not negligent, he is not liable for his causation [and with this, the difficulty of the Tosafot at the beginning of the chapter "Ha-Maniach," starting with the words "And Shmuel," is answered; see there and examine carefully].

And proof for this is that behold, the Rambam in the sixth chapter of Chovel wrote: One who damages the property of his fellow is liable to pay full damage, whether he was acting inadvertently or whether he was under duress, behold he is as one acting willfully. How so? If he fell from the roof and broke vessels, or if he stumbled while walking and fell upon a vessel and broke it, he is liable for full damage, as it is said: "And he who strikes an animal shall pay for it"—the verse did not distinguish between inadvertence and willfulness. Thus far his words. And in the thirteenth chapter of Nizkei Mamon, law 7, he wrote: If his pitcher broke in the public domain and someone slipped on the water or was injured by its shards, he is exempt because he is under duress. Thus far his words. And it must be understood, for behold even in a case of duress one is liable for damages. And one cannot say that specifically when he damaged vessels he is liable but if he damaged a person he is exempt, for on the contrary, damages to a person are more severe than damages to vessels. Furthermore, in the Gemara they derived from "wound for wound" to obligate for inadvertence like willfulness and duress like intent. And the Rambam, who derived from the verse "and he who strikes an animal shall pay for it," it is clear that he did so so that you should not say that specifically for damages to a person is he liable and not for damages to an animal; and for this he brought this verse, that even for an animal he is liable, and the same applies to vessels. Rather, certainly the distinction is that if at the time he stumbled he fell upon the person or upon the vessels and damaged them, he is liable; but this one whose pitcher broke did not damage at the time of the act, but rather afterwards a person was damaged by it, he is exempt because he was under duress.

And according to this, one must understand the words of our teacher, the Beit Yosef, who here in section 1 transcribed the wording of the Rambam in the sixth chapter of Chovel, yet in siman 412, section 4, he wrote: One who was carrying a jug and stumbled, and the jug broke and damaged others at the time of the fall, is exempt, for one who stumbles is not negligent. Thus far his words. And this is the wording of the Tur there, and he did not transcribe the wording of the Rambam in the thirteenth chapter of Nizkei Mamon that we cited. And certainly, according to the opinion of the Tur it is so, for he distinguishes between one type of accident and another, but not according to the opinion of the Rambam. And even though our teacher, the Beit Yosef, holds that the Rambam also distinguishes in this way, as he wrote, if so, why is he liable in the case of stumbling and falling upon a vessel and breaking it? For both this and that are cases of stumbling, and the Tur indeed did not write this case of stumbling here.

And it must be said that our teacher, the Beit Yosef, holds that one who stumbles is not a complete victim of duress, and therefore he is liable if he fell upon a vessel and broke it. However, regarding injuring a person at the time of the act, he is exempt, and not because a person is lighter than vessels, but because the injured party also should have guarded himself. And granted that he too was not negligent, and it is not similar to one who placed vessels near a sleeper as in section 2, nevertheless, we also should not obligate the first party, for he too was not negligent. And that which he wrote in siman 412, "and he injured others," this refers to when he injured a person and not an animal or vessels, for regarding an animal and vessels he is liable as he wrote here. And even though we have settled the words of our teacher, the Beit Yosef, nevertheless, the primary view regarding the opinion of the Rambam appears as I have written. Therefore, the Tur did not write here this matter of one who stumbles that the Rambam wrote. And even according to what he wrote in siman 304, section 3, that every stumbling is by means of some thing, such as by means of a vessel or a slope or ice, nevertheless, in any case, this and that are one and the same.

Our teacher, the Beit Yosef, wrote in section 4: If one was ascending a ladder and a rung slipped from under him and he fell and caused damage, if it was not fastened and strong, he is liable; but if it was strong and fastened and it slipped, or if it became worm-eaten, behold, he is exempt, for this is a "stroke by the hand of Heaven." And so too anything similar to this. Thus far his words. This is the wording of the Rambam, of blessed memory, and our teacher, the Beit Yosef, follows his own reasoning, for the Rambam also exempts in a case of total accident. According to this, it is well-settled that becoming worm-eaten is also a total accident. However, according to what I wrote regarding the opinion of the Maggid and the Shach, one must understand why he is exempt in the case of becoming worm-eaten. Indeed, even without this, it is difficult: how does a "stroke by the hand of Heaven" apply to becoming worm-eaten? Behold, he should have checked if it had become worm-eaten or not. The Ra'avad, of blessed memory, already challenged him, noting that even if he is under duress, nevertheless, it is no worse than all other accidents for which one is liable. However, in truth, it is a printing error, and it should say: "if it did not become worm-eaten" [Bach], for in that case, certainly, since there was no cause, it is a "stroke by the hand of Heaven." But if it became worm-eaten, he is liable according to the Rambam [and so it appears in Makkot 7b].

Our teacher, the Beit Yosef, wrote in section 2: If one fell from a roof and caused damage, he is liable to pay full damages, whether he fell due to a common wind or whether he fell due to an uncommon wind. Our teacher, the Rema, wrote that the reason is because it is not called a complete ones. However, the Tur wrote that in an uncommon wind he is exempt, for he is under duress. And behold, according to what I wrote regarding the opinion of the Rambam, he is liable even in a complete ones. And our teacher, the Rema, who found it necessary to say that it is not a complete ones, this is according to the majority of the poskim who exempt in a complete ones; and it is possible that he holds that the Rambam also holds thus in the opinion of our teacher, the Beit Yosef. But the Tur contradicts himself from what he wrote in siman 421, that regarding damage one is liable even in an uncommon wind. There is one who wrote that it is a scribal error in the Tur, and there are those who distinguished between a person and vessels, but it does not emerge well according to the halacha [Bach and Taz]. And there is one who says that here it deals with one who fell in a complete ones, and there it does not deal with a complete ones [Bach]. According to this, one must know in what manner it is a complete ones and in what manner it is not a complete ones. And the truth is that there it deals with a roof that has no parapet, as the Tur wrote there explicitly, and therefore even though in the fall he was under duress, nevertheless he should not have ascended a roof that has no parapet. But here it deals with an ordinary roof that has a parapet, and therefore when the uncommon wind uprooted the parapet or uprooted him from atop the parapet and cast him down, it is a complete ones [Taz]. And as for the halacha, certainly in such a case even our teachers, the authors of the Shulchan Aruch, would concede to this, and it is possible that even the Rambam would hold thus, for it is like a blow by the hand of Heaven.

That which has been explained, that according to most poskim one is exempt in a case of absolute duress, this is specifically when he caused damage without intent; but when he intended to cause damage, even under absolute duress, he is liable to pay, like one who is pursued who broke vessels in order to escape from being killed, as written in siman 274 and in siman 380 [Shach].

And there is no difference in all of this whether he damaged the animal of his fellow or killed it, or broke his vessels or tore his garments or cut down his saplings, and likewise if he damaged the body of his fellow; only that in damaging his body intentionally, he is liable for five things, with the help of Heaven, in siman 420.

Everything that has been explained—that one is liable whether unwittingly, or willfully, or under duress—this is specifically when he caused damage in the domain of the injured party, having entered his premises without his permission and damaged him. However, in the domain of the damaging party, or in a domain belonging to both of them, or in a domain belonging to neither of them, there are other laws regarding this. And thus the Sages, of blessed memory, said [Bava Kamma 48b]: If both were within their rights or both were without their rights, if they damaged one another they are liable; if they were injured by one another they are exempt. But if one was within his rights and one was without his rights, the one within his rights is exempt and the one without his rights is liable. And according to the opinion of the Rambam, the damaging party is not liable in his own domain unless he intended to damage him, but for an unwitting act, and certainly for an act under duress, he is exempt. And so too if both were within their rights or both were without their rights. This is his wording in the sixth chapter of Chovel: In what case does this apply? In the domain of the injured party. But in the domain of the damaging party, he is not liable to pay unless he damaged willfully; but for an unwitting act or an act under duress, he is exempt. And so too if both were within their rights or both were without their rights and one of them damaged the property of his fellow without intent, he is exempt. Thus far his words. And he wrote similarly in the first chapter of Chovel, law 16: One who damages his fellow with intent is liable in any location for five things. And even if one entered the domain of his fellow without permission and the homeowner damaged him, the homeowner is liable, for he has the right to remove him but he does not have the right to damage him. But if this one who entered was injured by the homeowner, the homeowner is exempt; and if the homeowner was injured by him, he is liable because he entered without permission. If both were within their rights or both were without their rights and they were injured by one another, both are exempt. Thus far his words. Behold, it is explicit that according to his opinion, aside from the domain of the injured party, one is not liable unless he damaged him with intent.

But the opinion of Rashi, of blessed memory, and other great ones among our teachers is not so, for they hold that when the sages exempted them in cases where both were with permission or both were without permission, this is specifically regarding damage that occurred on its own, such as where the damager stood in his place and the damaged party or his animal and vessels collided with him. However, in cases of damage by hand, whether he intended to damage or whether he did not intend to damage, he is liable. And even in the domain of the damager, if he only knew of him, the law is so, for this is like both being with permission. And when he did not know at all that he was in his domain, he is not liable unless he intends to damage. And in the domain of the damaged party, he is always liable even when he did not know at all and even in a case of accident, as has been written, for in the domain of the damaged party a person must be more careful, and regarding this they said: a person is always a muad.

And what is called "both are with permission"? For example, a partners' courtyard, or where the homeowner gave permission to both of them to enter his courtyard, or where the injured party gave permission to the damager to enter his courtyard, or the damager to the injured party. And similarly, when both were walking in a public domain or in a side-alley, it is called "both are with permission," for behold, both have permission to walk. But when they are running in a public domain or in a side-alley, it is called "both are without permission," for a person does not have permission to run in a place where many walk. And in a place that is not a place where many walk, such as in a field or a valley, it is called "with permission" even when they run [it appears to me]. And similarly, in a courtyard that does not belong to both of them and the owner of the courtyard did not give them permission, it is called "without permission." But when he gave permission to one and not to the other, it is for the one to whom he gave permission like his own courtyard:

Our teacher, the Beit Yosef, wrote in section 4: All these matters apply in the domain of the injured party, but in the domain of the damager, he is exempt unless he intends to cause damage, as will be explained. Thus far his words. And in section 6 he wrote: In any place where a damager is liable to pay, whether in a public domain or in the domain of the injured party, and even in the domain of the damager—if the injured party brought his property into it without permission and he damaged it, it makes no difference whether it was with his body or with his property, he is liable to pay; for granted that he has permission to remove it, he does not have permission to damage it. And this specifically applies when he damages it intentionally, but if he damaged it inadvertently, the homeowner is exempt. And if the homeowner was injured by the one who entered, even inadvertently, the one who entered is liable since he entered without permission. And there is one who says that this specifically applies when the homeowner did not know that he entered, but if he saw him enter, if he was injured by him, he is exempt. Thus far his words.

And in section 7 he wrote: If both of them were in a permitted area or both of them were not in a permitted area and they were damaged by one another, whether in their bodies or in their property, if they did not know of one another they are exempt. But if they saw one another, even though they did not intend it, they are liable. Therefore, two who were running in the public domain or who were walking and were damaged by one another they are exempt; if they damaged one another they are liable. Thus far his words.

And his words require clarification, for in section 4 he transcribed the wording of the Rambam that in the domain of the damager one is not liable until he intends to damage, and it has already been explained that according to the Rambam, when both are in a domain like a public domain, the law is like the domain of the damager. And if so, how did he write in section 6 that in any place where one damages he is liable to pay, whether in a public domain or in the domain of the damaged party, thus far his words, when behold, the law of a public domain is like the domain of the damager [the Gra]? And similarly, that which he wrote in section 7 follows the system of Rashi and not the Rambam. And it appears to me that our teacher, the Beit Yosef, decided based on his own reasoning and does not agree with the Rambam except regarding the domain of the damager, for then he is not liable except when intending to damage; but when both are in a domain, intent to damage is not required, and he is only exempt if they did not know of one another, but if they knew, he is liable even without intent to damage. And in the domain of the damaged party, he is liable even when he did not know. And that which he wrote, "whether in a public domain or in the domain of the damaged party," was not to equate them completely, but rather that they are not similar to the domain of the damager, and in them he is liable even without intent to damage. However, they are not similar, for in the domain of the damaged party he is liable even in a case of complete negligence, which is not the case when both are in a domain or both are not in a domain, for in those cases, in a case of complete negligence, he is exempt. And there is one who says that in section 6 it is the opinion of the Ramah in the Tur, and he holds like the system of Rashi, that even in the domain of the damager, if they saw him enter and they damaged the one who entered, they are liable even without intending to damage; and not only that, but even if the homeowner was damaged by him and the one who entered was negligent, he is exempt. And according to this, that which the Sages, of blessed memory, said, "a person is always forewarned," this only applies when he enters the domain of another and the owner did not know that he entered, or he brought his vessels there, for in this case, when the homeowner is damaged by him, he is liable even when this was complete negligence or an accident, and when he was damaged by the homeowner, he is exempt since he did not know that he entered. But when the homeowner knew that he entered and was damaged by him, he is exempt. And our teacher, the Beit Yosef, wrote similarly in siman 421, section 7 [and so it must be said for the Tur, and that which they questioned him on is settled].

From all that we have explained, it has been clarified that regarding that which the Sages, of blessed memory, said—"both of them with permission" or "both of them without permission," if they were injured by one another, they are exempt—according to the opinion of Rashi, this is specifically when one was injured of his own accord. However, when one injured the other, he is liable even without intent to cause damage, and this is what they meant by "if they injured one another, they are liable." And according to the Rambam, it is called "they injured" specifically when he injured with intent to cause damage, and it is called "they were injured" when he injured without intent to cause damage, and certainly when he was injured by his own action against the one who caused the damage. And so too in a case where both of them are running in the public domain or both of them are walking. And there are some among the great authorities who said that even according to the opinion of Rashi, that in a case of "they injured" one is liable even without intent to cause damage, this is specifically when the one causing the damage performs an action and the injured party stood in his place. But when both of them perform an action, such as when both of them are running or both of them are walking, even "they injured" is considered like "they were injured" of their own accord if he does not intend to cause damage, and he is exempt. For since they became entangled with one another and both of them were walking or running, even though they injured, one cannot say regarding this "they injured" literally, but rather it is considered like "they were injured." [The Ramah in the Tur and Nimukei Yosef, chapter HaMeniach; and with this the Mishnah on page 32a is settled: "if they injured one another, they are exempt," and there is no need for what Rashi wrote on page 48b, s.v. "chayavin," that the language was not precise. And it appears to me that this is also the intent of the Tosafot in HaMeniach there, s.v. "shenayim," see there and examine carefully].

If one was running in the public domain and another was walking, and the one walking was damaged by the one running, he is liable because he ran without permission, for one may not run in the public domain, and its law is like the domain of the injured party. And if the one running was damaged by the one walking, he is exempt unless he damaged him intentionally; according to Rashi and the Rambam, he is not liable unless he damaged him with the intent to injure, and so it is according to the second opinion in section 17. And the sages, of blessed memory, said: when is he called one who runs in the public domain without permission? On a weekday. But on the eve of Shabbat close to Shabbat, if he runs for Shabbat matters, it is called "with permission" and he is exempt. And specifically in an ordinary case, when we do not know for what purpose he ran, we hang it on the assumption that he ran for the needs of Shabbat; but if it is known that his running is not for the needs of Shabbat, he is liable as on a weekday. However, if the running was even for his other affairs, but his running was so that he would not desecrate Shabbat, it is also called "with permission" [and the Sma wrote that this is not implied by the Rema; I do not know from where he has this, for the intention of the Rema is where it does not pertain to the desecration of Shabbat at all].

From what our sages, of blessed memory, said—that one who runs on Erev Shabbat is considered authorized—one should not learn from this that anyone who runs for a mitzvah is considered authorized. For Erev Shabbat is different, as its time is hurried. However, regarding other mitzvot, even though it is a mitzvah to run, nevertheless, he should not run so much that a pedestrian is harmed by him [Chavat Yair]. However, regarding one who runs for the matter of pikuach nefesh, or to save from a fire, or from water, and the like, certainly it is called authorized, for it is an obligation upon him to run with all his strength, and it is no less than Erev Shabbat [it appears to me].

Just as a person has no permission to run with his feet in the public domain, so too he has no permission to run excessively when riding on a horse or sitting in a wagon. And if he ran to such an extent that he damaged a person, or an animal, or vessels, he is liable to pay just as if he had damaged with his body. And there was an incident involving two who were riding on horses, and one of the riders came behind the horse of the second rider and struck his horse, and hit the horse until its value was diminished by this hitting. The Rosh, of blessed memory, ruled that he is liable to pay whatever the diminution that was diminished due to this hitting is appraised at. But more than this he does not need to pay; even if the damaged horse belonged to a gentile, and the rider upon it will pay him more than its value because of his violence, nevertheless the damager does not need to pay more than the diminution, for that which the gentile will extract from the rider unlawfully is only considered like a mere indirect cause. And regarding a rider or one sitting in a wagon who damaged a person and claims that he did not run more than what is customary, but rather this injured party walked toward his horse not in the manner of other people and through this was damaged, he shall swear that such was the incident and is exempt. And so too if he damaged a vessel and claims that the owner of the vessel placed it not in a place fit to place it in the street, he swears a hesat oath and is exempt. And if there are witnesses, it shall be clarified by witnesses. But when he damaged an animal, he is liable in any case, for it is impossible for the owner of the animal to walk after his animal, and the traveler or the rider must take care not to damage the walking animal. However, there are places where they do not allow an animal by itself to walk in the market all day, but rather they hand it over to a shepherd in the morning; therefore, if it walked in the middle of the day and was damaged, the damager is exempt unless he damaged with intent. And according to the Rambam, regarding intent of damage in this place, the walking of his animal is without permission, and its law is like one who was damaged by a runner while walking, as in section 18.

In a place where it is customary to play at a time of joy, to run and to ride on horses, as was the custom in ancient times that young men rode on horses toward the groom and it was their way to run and they damaged one another's property by way of joy and play, and similarly in other matters of joy such as Simchat Torah and Purim, if the custom is to do so, they are exempt. Nevertheless, if it appears to the beit din to make a fence and a safeguard and to obligate the one who caused damage, the authority is in their hands, for many mishaps emerge from this.