Siman 379

Two who were walking in the public domain, this one walking with his barrel and that one carrying a beam, and they are walking abreast across the width of the street and they collided with one another and the barrel was broken by the beam, he is exempt, because this one has permission to walk with his barrel and that one with his beam. It has already been explained that whenever both are acting with permission, according to the Rambam he is exempt when he did not intend to cause damage. And even according to the opinion of Rashi that he is not exempt for causing damage, here it is not considered as if he damaged it, but rather as if the barrel was damaged by him, for through the path of both of their walking, the barrel was struck against the beam and the owner of the barrel assisted in its breaking [Tur]. Therefore, if the owner of the barrel stood in his place and this one walked with his beam and the barrel was struck against the beam and broke, the owner of the beam is liable, for he caused the damage. And even though it will be explained that the standing of the owner of the barrel more so causes the owner of the beam to be exempt, that is when they are coming one after the other, and if he were walking, the owner of the beam would not have reached him; but when they are walking toward one another, the standing delays the damage from coming, and one cannot exempt the owner of the beam due to the standing of the owner of the barrel [Shitah Mekubetzet in the name of Riva, Bava Kamma 32a; and I did not write the resolution of Tosafot ibid. s.v. "tarveihu," for in terms of the halakhah, that case of a skeleton is rejected].

And specifically in a public domain, but in the domain of the owner of the barrel, and this one carried his beam without the knowledge of the owner of the barrel, and the barrel was struck by the beam and broke, the owner of the beam is liable in any case. For since the owner of the beam has no permission to walk there, the owner of the barrel does not have to be cautious of him, and he is considered like one who damages directly [ibid. in Tosafot]. And if it was in the domain of the owner of the beam, and the owner of the barrel carried his barrel without permission, according to the opinion of the Rambam, the owner of the beam is certainly exempt unless he broke it intentionally. And even according to the opinion of Rashi, it appears to me that he is exempt even if the owner of the barrel stood still. And even though we explained that when they walk toward one another and the owner of the barrel stood still, the owner of the beam is considered like one who damages, and according to Rashi one is liable for damaging even without intent to damage even in the domain of the damager, as I wrote in siman 378, nevertheless he is exempt here. For in truth, when he walked with his beam and the barrel was struck by it, even when the owner of the barrel stood still, the owner of the beam did not damage it directly, for they were struck against one another; rather, in a domain belonging to both of them, we consider him like one who damages because he should have been cautious, but not in his own domain.

An owner of a beam and an owner of a barrel who were walking in the public domain, and they were not walking toward one another but rather one after the other: if the owner of the beam was first and the owner of the barrel walked after him, and the barrel was broken by the beam, he is exempt, since he walked with permission. But if the owner of the beam stood to rest, he is liable, for this he did without permission, as he should not stand to rest in a place where people walk constantly, for he is liable to cause damage with his beam. And if he was forced to rest here, he should have warned everyone coming after him to watch out for his beam; therefore, if he truly warned the owner of the barrel and said to him, "Stop," he is exempt. If he stood to adjust his load, even though he did not warn him, he is exempt, because he was preoccupied and was unable to warn him. Even though the owner of the barrel must be careful according to this from damage that might occur to him from the beam, for perhaps he will stand to adjust his load—and if so, why is the owner of the beam liable when he stands to rest, and from where does the owner of the barrel know if the standing of the owner of the beam is to rest or to adjust his load? For certainly it is so; but in any event, when he stood to adjust his load, he acted with permission, and it is like the domain of both of them, and he is exempt even according to the system of Rashi, because we consider that he is not the damager, but rather the barrel was damaged by him, as I wrote in section 1. But when he stood to rest, it is as if it were without permission, and it is similar to the domain of the injured party where one is liable in all cases even according to the system of the Rambam, as I wrote in siman 378 [it appears to me].

If the owner of the jug was first and the owner of the beam walked behind him, and the jug was broken by the beam, he is liable, for since he walked behind him, it is like breaking with intent [the Rambam], for since he saw the jug before him, he should have been careful not to strike it. And if the owner of the jug stopped to rest, he is exempt, for he was negligent regarding himself. And if he warned the owner of the beam to stop and he did not stop, he is liable. And if the owner of the jug stopped to adjust his load, the owner of the beam is liable even though the owner of the jug did not warn him. And one cannot say: how was the owner of the beam to know if he stopped to adjust his load or to rest? For certainly it is so, that he has no way to know, but in any case, he must be concerned that he stopped to adjust his load and is obligated to ensure that his beam does not damage the jug. However, nevertheless, when the owner of the jug stopped to rest, he acted without permission and is considered like the domain of the damager, and in the domain of the damager one is not liable except with intent to damage according to the Rambam, and even according to Rashi it is only in a case of actual damaging; whereas the striking of a jug against a beam we consider as they damaged one another. And even when the owner of the jug stopped, the owner of the beam is not considered an actual damager such that we should make him liable in his own domain. And there is one who exempts the owner of the beam in every case unless he knew that the owner of the jug stopped to adjust his load; and although his reasoning appears sound, nevertheless, since our teachers the Rishonim do not hold so, it must be as I have written [it appears to me]:

And one should not raise a difficulty: in every instance where we obligate the owner of the beam to pay for the damage to the jug, behold in siman 410 it will be explained that any obstacle a person creates in the public domain has the law of a pit, and regarding a pit, the Torah exempted one from liability for vessels, as is written there; how then can he be liable for the jug? For in truth, this is only when he threw the obstacle onto the ground and it caused damage on its own—that has the law of a pit. This is not the case when the obstacle is on the person's body; in that case, it does not have the status of a pit, but rather of a person who causes damage, and he is liable for everything [Nimukei Yosef ibid.]. And see what I have written in siman 413, section 3.

In a case where the owner of the beam is liable to pay, even if his beam did not fill the entire width of the path, he is liable to pay, and he cannot say, "You should have walked on the other side," for he has no authority to say so, as every person has the authority to walk in whatever place he desires. And when we consider the owner of the beam a damager, it is incumbent upon him to be careful not to cause damage [and even though in the Gemara it establishes it as a skeleton-frame, this is not the halacha, as is proven from the Rif and the Rambam who omitted this, as wrote the Rosh and the Gra in subsection 1, and so it is in the Yerushalmi].

It appears to me that regarding what we have said, that when he stood to repair his burden he did not have to warn the second person to stand because he was preoccupied with the repair of his burden, this is according to all opinions. Even according to that opinion which will be explained in siman 413 regarding two people who stumbled and fell one after the other, where the first is liable when he did not warn the second even though he was exempt for his own falling—it is different there, for falling is an uncommon occurrence and he should have warned the second so that he would not fall as well. However, regarding one who stands to repair his burden, which is a common matter for all carriers of burdens, he does not have to warn the one coming after him to be careful of damage when he himself is preoccupied with the repair of his burden. And so it is implied from the sugya of the Shas [and perhaps to this the Rema alluded in what he wrote in section 2].

All the laws that were explained regarding a barrel and a beam apply similarly to all things that two people were carrying in a public domain and they collided with one another, and one of them was damaged by the other without intent to damage; the law is as we have written. For example, this one is walking and carrying a candle and that one is walking and carrying flax, and they collided with one another and the flax was ignited by the candle, and so too with all similar types of damages.

The Rambam, of blessed memory, wrote in chapter 6 of Chovel: If one filled the courtyard of his fellow with jugs of wine and oil, even if he brought them in with permission, since the owner of the courtyard did not take upon himself to guard them, he may enter and exit in his usual manner, and whatever is broken of the jugs during his entry and exit, he is exempt for them; but if he broke them intentionally, even if the owner of the jugs brought them in without permission, he is liable. Thus far his words. And he follows his reasoning which we explained in siman 378, that in the domain of the damager, as long as he does not intend to damage, he is exempt. But according to the reasoning of Rashi explained there, he is liable unless he did not give him permission to fill the entire courtyard. And so ruled the Ra'avad and the Tur. And there is one who says that even without permission, if he only knew, he is liable even when not intending to damage, as written there in section 16. But it does not appear so from the wording of the Tur, and also in the Gemara [28a] it is implied explicitly that even if he knew, since he did not give him permission, he may walk in his courtyard even though through the path of his walking the jugs of the one who brought them into the courtyard were broken, for the owner of the courtyard does not have to trouble himself and arrange the jugs of this person [Tosafot]. And it is not similar to there, for here, since he filled the entire courtyard and the owner of the courtyard is forced to walk through there, they were broken automatically; and also he does not have to trouble himself and go to beit din, for we established that a person may take the law into his own hands, as written in siman 4, see there. And also regarding the opinion of the Rambam, of blessed memory, it appears to me that his intention is not that he gave him permission to fill the entire courtyard, for if so, there is no logic at all that he should walk over them and break them in the path of his walking, for we are witnesses that with such permission the owner of the jugs would not have consented to this; rather, his intention is that he gave him permission to bring his jugs into his courtyard, but he did not give him permission to fill it until no path remained for him. Nevertheless, if he took upon himself to guard, even though regarding this matter of filling the entire courtyard he did not give him explicit permission, nevertheless the owner of the courtyard may not cause him damage by his walking since he accepted to guard them. And according to this, our teachers do not disagree on the law at all.