Restoring the Primacy of Choshen Mishpat. BUSINESS HALACHA in the CLASSROOM. Bava Kama. Perek Gimmel. A project of the Business Halacha Institute

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1 Restoring the Primacy of Choshen Mishpat BUSINESS HALACHA in the CLASSROOM Bava Kama Perek Gimmel A project of the Business Halacha Institute Under the auspices of HaRav Chaim Kohn, shlita

2 Fire Power Bava Kama 27b - Dinei Nezek Rabbi Dayan sat with his students around the bonfire on Lag Ba omer. I ve got a challenge for you, Rabbi Dayan said. Can anyone think of something that ties together the time period of sefiras ha omer, R Shimon bar Yochai (Rashbi), bonfires and Choshen Mishpat? We light fires on Lag Ba omer to commemorate the passing of Rashbi, Moshe said. Bonfires relate to Choshen Mishpat; if people are not careful with fire and it damages, they are obligated to pay. Good, said Rabbi Dayan. But where does sefiras ha omer tie in? Wasn t Rashbi one of R Akiva s students? suggested Etan. We limit joyful activities during the period of sefiras ha omer because 12,000 pairs of R. Akiva s students died during this time period. OK, Rabbi Dayan responded. But was R Shimon bar Yochai one of those students? No, chimed in Uri. The Gemara (Yevamos 62b) relates that after R Akiva s students died, the world was desolate until R Akiva came to the Torah scholars in the south and taught them: R Meir, R Yehuda, R Yosi, R Shimon, and R Elazar; they reestablished Torah. That R Shimon is Rashbi. Excellent, exclaimed Rabbi Dayan. Does anyone know another context in which these same five Torah giants are mentioned? I remember something with R Yehuda ben Bava and semicha, said Etan. Correct, replied Rabbi Dayan. Do you know what exactly semicha is? That s when they ordain someone as a Rabbi after he studies many years, said Uri. My father has semicha, he added proudly. That s wonderful, said Rabbi Dayan. But our semicha nowadays is just permission to render halachic decisions, not the formal semicha mentioned in the Gemara. What was that semicha for? asked Moshe. In order to have full judicial authority, the Torah requires that the dayanim receive formal semicha, explained Rabbi Dayan. This is an unbroken chain of authority linking directly back to Moshe Rabbeinu. In the times of R Yehuda ben Bava, the Romans wanted to break this chain and issued decrees against granting semicha, under penalty of death. R Yehuda ben Bava gave up his life to grant semicha to these

3 Fire Power, cont. same five Torah scholars, including Rashbi. They continued the chain for another 250 years, until it was broken almost 1,600 years ago. Rabbi Dayan, how can you then adjudicate in beis din, asked Uri, since the chain of semicha was broken? Dayanim without formal semicha are able to judge as long reaching agents of the fully empowered dayanim of old, replied Rabbi Dayan. The Gemara (B.K. 84b) limits the authority of current dayanim to cases that are considered common and also entail financial loss. This includes most monetary cases: obligations, debts, kesubos (marriage obligations), inheritance, gifts, damage to property, certain aspects of personal injury, theft, and damage caused by animals through eating or trampling. It does not include cases that are uncommon, such as an animal that gored, or cases that do not entail financial loss, such as the double-payment penalty (kefel) of a thief (C.M. 1:1-3). This brings us back to bonfires, continued Rabbi Dayan. There is a dispute whether fire damage is considered common, in which case dayanim nowadays have authority to judge. Shach (1:2) cites the Maharshal that fire is not considered common. However, most other authorities consider fire as something common that dayanim nowadays have authority to judge (Pischei Teshuva 1:2; Aruch Hashulchan 1:3). Does this mean that in cases that are not considered common there is no legal recourse nowadays? asked Etan. Even in these cases, the accepted practice is that beis din can review the case and estimate the amount owed, answered Rabbi Dayan. Although they do not have legal authority to extract payment, they can apply sanctions until the guilty party appeases his litigant with an appropriate amount. Similarly, if the litigant is able to seize what is owed him, he can keep it (C.M. 1:5; Shach 1:17). On a pragmatic level, concluded Rabbi Dayan, I should note that beis din is not able to enforce its verdict in the secular legal system nowadays without a prior binding arbitration agreement. Therefore, the practice of almost all batei din is to require a binding arbitration agreement. By doing so, the litigants accept the authority of the dayanim to adjudicate the case. This acceptance also gives them halachic authority to adjudicate even cases that are considered uncommon (C.M. 22:1).

4 Weed Whacker Bava Kama 27b - Dinei Nezek Our weeds are getting totally out of hand, Mr. Mazer said to Moish, the gardener. I d like you to come cut them. Moish drove over to the Mazer s house and unloaded his professional weed whacker, which looked like a long pipe with a rotating wire filament at the end. He revved the engine and the machine roared to life. Whirr Moish made his way around the yard, cutting the weeds as he went. He turned his attention to the brush near the house; the thick weeds obscured the side of the house completely. Moish moved over the weeds with his weed whacker. Clump by clump, the thick green weeds yielded to the force of the whirling wire with a steady chut, chut, chut sound. As Moish rounded the corner of the house, the chut, chut suddenly became crack! What was that? exclaimed Moish with alarm. He pushed aside the clump of weeds he was working on. I don t believe it! he moaned. Affixed to the side of the house, covered by the weeds, was an electric wire leading to an outside outlet. It had gotten slashed by the weed whacker. Moish knocked on the door. I apologize, he said to Mr. Mazer, but there was an electric wire under the brush that got sliced by the weed whacker. It was completely concealed by the weeds, so I didn t see it. I ll have to get an electrician to fix the wire, said Mr. Mazer. Did this ever happen to you before? No, said Moish. I m generally careful, but this wire was completely covered. You still have to watch what you re doing, especially when working near the house, said Mr. Mazer. You damaged my property, and you should pay for the repair. It s not like I just came and damaged property, argued Moish. You did ask me to cut the weeds, and I can t be expected to look under every clump before I cut. I d be here all afternoon! But you do have to be more careful near the house, replied Mr. Mazer. I ll see what the electrician charges and then we ll talk. The local electrician fixed the wire.

5 Weed Whacker, cont. That will be $75, he told Mr. Mazer. Mr. Mazer called Moish. The electrician charged $75 for the repair, he said. If you want me to pay that, said Moish, that s my whole salary for the job I did. It s simply not fair! Nor is it fair that I should have to pay double, said Mr. Mazer. Let s speak with Rabbi Tzedek. Rabbi Tzedek ruled: In principle, the gardener is liable unless it was not feasible for him to notice the electric wire or if the owner was remiss in not alerting him to its existence. Since this is difficult to ascertain, it is best to compromise. Rabbi Tzedek then explained, A person is generally liable for any damage that he does, even if unintended and not his fault. However, Tosfos (B.K. 27b s.v. U shmuel) explains that the person is only liable if he carries an element of blame, even if not negligent (oness k ein aveida). A paid worker carries additional liability if he could have prevented the loss (oness k ein geneiva). Even a paid worker, though, is not liable for damage beyond his control (C.M. 306:4; 378:11). Ramban (B.M. 82b) maintains that one who damages is liable regardless of the circumstances, unless the owner was remiss in allowing the damage. However, even he concedes that a worker who acted upon instruction is not liable for circumstances beyond his control. Similarly, the Mishna (B.K. 98b) teaches that if a construction worker was hired to dismantle (not demolish) a stone wall, and while dismantling one end of the wall, the other end collapsed and usable stones shattered or caused damage, he is exempt (C.M. 384:3). One explanation is that this was an accident beyond his control (Meiri B.K. 98b). In your case, the gardener damaged the electric line, albeit unintentionally. Since he is being paid, he is liable so long as it was feasible for him to notice the electric wire, even if he bears only minimal blame. He is exempt only if the accident was beyond his control or if the owner was negligent in not alerting him (see Pischei Choshen, Sechirus 7 nt ). Since circumstances are variable and it is difficult to ascertain whether it was feasible for the gardener to have noticed the wire, and whether the owner should have warned him, it is best to compromise."

6 Fainted! Bava Kama 27b - Oness Gamur Alan Rosen had not been feeling well all week. When he went to shul on Friday night, the heat in the room bothered him. In the middle of Kabbalas Shabbos, he headed out for a short break to get some fresh air. As he reached the door, Mr. Rosen fainted, collapsing against the door and cracking the glass. Hatzolah! people cried out, and called for an ambulance. Two doctors, members of the shul, immediately raced over. They checked Mr. Rosen s vital signs and were relieved to find his pulse and breathing steady, although slightly weak, and didn t see any evident injury from his fall. When Mr. Rosen was stable, they raised him onto a chair and gave him a cup of water to drink. He was still somewhat dazed by the fall. Within a few minutes, a Hatzolah ambulance pulled up. After checking his blood pressure, the medics helped Mr. Rosen to his feet and escorted him to the ambulance. Baruch Hashem, the tests in the hospital showed no significant injury, and Mr. Rosen returned home after Shabbos. Meanwhile, the glass of the door had to be replaced. The glass was a special kind, though, so the bill amounted to a substantial sum. The treasurer of the shul was not keen on paying for the repair, as the shul was struggling financially. He decided to consult with Rabbi Dayan about it. Does the shul have to pay for the repair of the glass door, he asked Rabbi Dayan, or is it perhaps Mr. Rosen s liability? Although he didn t break the glass intentionally, still, he was the one who damaged it. Isn t there a rule that adam mu ad l olam a person is always accountable for damage he causes (B.K. 26a)? This issue is the subject of a well-known dispute between Tosafos and the Ramban, replied Rabbi Dayan. The Gemara (B.K. 27a) obligates a person who is blown off the roof, even by a strong wind, who causes damage when he falls. Nonetheless, Tosafos (B.K. 27b) maintain that a person is not responsible for damage that is beyond his control (oness gamur). The Ramban (B.M. 82b), on the other hand, maintains that a person is liable even if blown off the roof by a great wind of Eliyahu! said Rabbi Dayan. He exempts a person who damages only if the damaged party was negligent or helped bring the

7 Fainted, cont. damage upon himself. What about other Rishonim, such as the Rambam? asked the treasurer, who was quite learned. His opinion is not completely clear, answered Rabbi Dayan. The Rambam (Hilchos Chovel U mazik 6:1) simply cites the Gemara that a person is always liable, even if he damages unintentionally and even if it is oness, without differentiating. The Kesef Mishneh notes, however, that later (6:4) the Rambam exempts what he terms makkah biyedei Shamayim (an act of G-d). How do we rule? asked the treasurer. The Mechaber (C.M. 378:1, 3) cites both statements of the Rambam almost verbatim; the Rema (377:1, 2) interjects that a person is not liable for oness gamur, said Rabbi Dayan. The Mechaber, who does not differentiate, seemingly disagrees with the Rema, but he may actually agree, as indicated in the Kesef Mishneh regarding makkah biyedei Shamayim (see Shach 378:1; Gra 378:3). Where does this leave us? asked the treasurer. Our case would be in the category of oness gamur, answered Rabbi Dayan. According to the Rema, Mr. Rosen is exempt, and possibly also according to Shulchan Aruch, since this was an act of G-d. Nonetheless, concluded Rabbi Dayan, it would be appropriate for Mr. Rosen to make a donation to the shul in appreciation for having helped him and as thanks to Hashem that he was not injured.

8 Educational Damage Bava Kama 28a - Leshamto David walked in to school with his brand new MP5 and announced, "Look what I bought yesterday!" He proudly showed his friends some of the features: the 4.8 inch vivid color TFT display screen, built in video camera, expandable 16 GB memory, and GPS capability. "Even on sale, it cost $149," he added. Good morning, children, said Rabbi Bloch as he entered class. David quickly put the MP5 away, but his mind was still on his new toy. At recess he whipped it out again, and shared a You-Tube clip with his classmates. When the shiur resumed, David slid the MP5 under his Gemara and continued to watch other clips. Rabbi Bloch noticed that David was not focused, and began walking towards him. David quickly slipped the Player under his desk. The same thing happened the following day, but this time Rabbi Bloch saw the Player. "David, please stay after class for a few minutes," he quietly said. "I'd like to talk to you." Rabbi Bloch explained that the Yeshiva placed a premium on the moral and spiritual development of the students, in addition to maintaining a high educational level. The Yeshiva strongly discourages students from bringing video-mp players to school because they often prove distracting in class and sometimes are used to display inappropriate photos and movies, he concluded. I know you are excited about your new MP Player. Enjoy it and use it appropriately, but please leave it at home," David was careful for a week, but afterwards the MP5 drifted back to school, first during recess and then also during class. Rabbi Bloch again spoke with David and insisted that he stop bringing it. He sent a letter to David's parents noting that the new MP Player was disturbing their son's education and harming the class environment with the movies. "If the issue persists, the school will consider disciplinary actions, including confiscating the player," he ended. Two weeks later, Rabbi Bloch noticed David huddled with some friends in the corner of the schoolyard. He walked over and was dismayed to see the MP5 player again. As he came closer, he caught a glimpse of an indecent movie being played. He knocked the player out of David's hand and it went crashing against the wall. David turned around, embarrassed and shocked. He bent down to pick up his

9 Educational Damage, cont. player, and saw that it was shattered, its screen now many tiny pieces of glass. Rabbi Bloch took David to the principal. They discussed together the severity of what transpired and the detriment the MP Player was causing to David s development and to that of his friends. When they finished talking, David said, "I acknowledge that I was wrong, but Rabbi Bloch still had no right to break my player. It was expensive, and he owes me for it." "I do not," Rabbi Bloch countered. "I needed to stop you and your friends from watching that movie immediately. You were warned about the MP5, and it was also an important educational lesson for you and your classmates. "We will continue to deal with the educational aspect of the incident," said the principal, "but you will have to consult Rabbi Tzedek about the monetary damage." Rabbi Tzedek heard the story from David and Rabbi Bloch and said: "If it was necessary to confiscate or break the MP5 - either to prevent David and the other students from watching these films or as an appropriate disciplinary measure - Rav Bloch is exempt. However, if it was not necessary, and the educational goal could have been accomplished better in another manner, there is room to hold him liable." Rabbi Tzedek explained: "There are two exempting factors to consider. First, the Rama writes that one who is responsible for another may restrain him from violating a prohibition even through physical means (C.M. 421:13). Certainly, then, he is permitted to restrain him through monetary means. Thus, if it was necessary to break or confiscate David's MP5 to prevent him from watching indecent movies, Rabbi Bloch is exempt." "What is the second factor?" David and Rabbi Bloch asked. Rabbi Tzedek continued: "An educator is expected to administer appropriate disciplinary measures to foster the spiritual and moral development of his charges (Y.D. 245:10 and C.M. 8:5). However, if he punishes in an excessive manner he may be held liable. The determination of appropriate or excessive discipline varies, and depends on Beis Din s evaluation of the particular circumstances (Pischei Teshuva C.M. 424:4 and Aruch Hashulchan 424:17). Potential factors include whether the educator warned the student sufficiently, what alternative disciplinary options were available, and the educational policy and authority of the Yeshiva."

10 Public Passage Bava Kama 28a - Meitzar Shel Rabim Mr. Feder lived just behind a shul. Since the road wound around his large property, people coming to shul on Shabbos would often take a shortcut through his property. The through traffic did not bother Mr. Feder, as his house was on the other end of the property, so he never made a fuss. One day, Mr. Feder decided to build a fence. He left himself an opening on the side adjacent to the shul, but planned to enclose the remainder of the property. As the posts were put in place, the president of the shul asked Mr. Feder, Would you consider also leaving an entrance on the street side, where the shortcut to the shul is? No, I d like to complete the fence, replied Mr. Feder. Once I m investing in the fence, I d like to do it properly. But people have been accustomed for years to cut through your property, said the president. For some people, walking around your property means an extra seven minutes. It s my land; I can do what I want, responded Mr. Feder. I ve been nice about it until now, but that doesn t mean that I owe the public anything. But the Gemara (B.B. 100a) teaches that a person may not ruin a pathway that the public possessed, replied the president. This is phrased as Meitzar shehecheziku bo rabbim assur l kalkelo. Since you ve allowed the public to posses the pathway for the past few years, you re not allowed to ruin it now! Who says that rule applies here? said Mr. Feder. Maybe it s only when the public officially possessed the path? I never gave people formal rights to walk through the property. At most a handful of people actually asked me whether it was okay. The rest simply trespassed! But you saw them do it and never protested in any way, so you acquiesced to them having this right, argued the president. The president had Mr. Feder summoned to Rabbi Dayan s beis din, asking that he be restrained from fencing the public passageway. After a brief deliberation, Rabbi Dayan issued the ruling: The members of the shul cannot restrain Mr. Feder from completing his fence.

11 Public Passage, cont. Why is that? asked the president. The law of meitzar shehecheziku bo rabbim is explicit in the Gemara and codified in the Shulchan Aruch (C.M. 377:1; 417:2), explained Rabbi Dayan, but there are numerous limitations on the practical application of this halacha. First, there is a dispute among the Rishonim about whether tacit acquiescence through silence suffices or if explicit permission of the owner is required. Second, there is a dispute about whether it suffices that the public simply walked through, or if there is need for some construction to enhance the passage. Third, the public through traffic must be such that the owner would normally protest such an intrusion. However, if the area is not developed anyway or if the public traffic does not interfere with the owner, so that he had no reason to protest their usage of his property, their chazakah of walking is not valid if they did not do construction. Fourth, the fact that a group of people used the land as a shortcut does not determine them as public, unless they form a large percentage of the people for whom this passageway was relevant (Chochmas Shlomo 377:1). Fifth, some authorities maintain that if the owner has rights officially registered in the land authority, we do not presume mechilah on his part only by walking, if the public did not do any physical improvement to the land (Pischei Teshuvah 153:3; Maharsham I:5; III:376). Therefore, on account of five reasons mentioned, concluded Rabbi Dayan, Mr. Feder can fence his property even though it will block the passageway to the shul. He never explicitly granted this right; the public never did any physical improvement; he had no real reason to protest previously; the shortcut was used only by a select group; and his property rights are listed with the land authority (see Pischei Choshen, Nezikin 8:32[79-84]).

12 Banana Split Bava Kama 28b - Bor Mr. Frei finished his weekly fruit and vegetable shopping and headed outside to his car. I m hungry, said his daughter, Bracha. How about a banana? offered Mr. Frei. He gave Bracha a banana and also took one for himself. He tossed the peels away; they landed in the street behind the car. As Mr. Frei settled into his car, an older man, Mr. Polter, began crossing the street holding a package. He slipped on the banana peels and fell. Mr. Frei helped Mr. Polter get up. Are you all right? he asked. I hope so, Mr. Polter gasped, limping badly. I ll have to see the doctor. Some irresponsible person left banana peels on the street! I m sorry, Mr. Frei said. I didn t expect that someone would slip on them. You shouldn t litter, said Mr. Polter. You ve got to make sure that garbage ends up in the trash can. Mr. Polter opened his package and gasped sharply. What happened? asked Mr. Frei. I bought a crystal vase for my wife s seventy-fifth birthday, Mr. Polter replied. It s shattered! Three days later, Mr. Frei met Mr. Polter. How are you? he asked. Much better, said Mr. Polter. Baruch Hashem it was just a bad bruise, but I have some bills for you: doctors and medicine bills, a cleaner s bill for my suit, and the receipt for the crystal vase. It comes to $829. Mr. Frei looked at the bills. I m truly sorry that you fell, but you really should watch where you walk, he said. Anyway, it wasn t even my property; it was in the street. Nonetheless, replied Mr. Polter, they were your banana peels. When you slipped, though, they weren t mine anymore, countered Frei. They became hefker (ownerless) when I threw them away. We ll take this up with Rabbi Tzedek, sighed Mr. Polter. The two met with Rabbi Tzedek and asked, Is Mr. Frei liable for all the damage? Rabbi Tzedek ruled: Mr. Frei is legally liable for your injury. Some authorities maintain that he also has a moral obligation (chiyuv b dinei Shamayim) to pay for

13 Banana Split, cont. the suit and vase. Rabbi Tzedek then explained, One of the four categories of damage is bor (pit), as it says: If a man shall dig a pit and not cover it, and an ox or a donkey falls into it, the owner of the pit shall pay (Shemos 21:33-34). The man is called the owner of the pit even if he dug it in a public street, and he is liable. Damage inflicted by any stationary obstacle is included in the category of bor. The person responsible for the obstacle is liable for the ensuing damage. Whether he placed the obstacle there intentionally or through negligence, he remains liable, even if he disowned the obstacle and declared it hefker. Thus, the banana peel that Mr. Frei left in the street and which you slipped on is included in the category of bor (C.M. 410:1; Sm a 412:9). But why is there no legal obligation for the suit and vase? asked Mr. Polter. The Torah limits the liability of bor significantly, excluding damage to inanimate objects, answered Rabbi Tzedek. There is legal liability only for an animal (e.g. ox or donkey), or for a person who was injured. Therefore, Mr. Frei is not legally liable for the damage to the suit and vase (410:19-21). Why is the halacha so? asked Mr. Frei. This is derived from the passuk, replied Rabbi Tzedek, which suggests that inanimate items do not move by themselves; the person who moves them should guide them to avoid the damage (Aruch Hashulchan 410:26). Although there is no legal liability, said Mr. Polter, you said that there might be a moral obligation? Yes. Although the Torah excludes liability for inanimate objects, the Gemara (B.K. 29a; 56a) indicates that the perpetrator is chayav b dinei Shamayim if he intended to damage, concluded Rabbi Dayan. If he did not intend to damage, Rav S. Z. Auerbach, zt l, maintains that there is no moral obligation (Minchas Shlomo, B.K. 29:4); the Chazon Ish remains doubtful; and Birkas Shmuel takes for granted that there is a chiyuv b dinei Shamayim (Pischei Choshen, Nezikin 1:[1]; 9:[53]).

14 Banana Split - Re"peel"ed Bava Kama 28b - Karka Olam Rabbi Goodman entered his classroom with a pile of Business Weekly newsletters. He often brought to shiur the exploits of Rabbi Tzedek and Rabbi Dayan to enliven the Gemara they were learning. This week s article deals with issues we ve learned during the year, Rabbi Goodman announced with a broad smile. Bava Kama is a good masechta for this as it deals with the laws of damages. Banana Split! exclaimed Dov. I remember! Actually, it s not a happy story, said Rabbi Goodman, but it teaches the importance of being a conscientious citizen. Baruch read aloud the story about Mr. Frei, who threw his banana peel in the street. An elderly man slipped on the peel and was badly bruised. In addition, an expensive gift he was carrying was shattered. That s actually bor (a pit), Yaakov said. We learned that you re liable for injuries to animals and people, but not to inanimate objects. That s what Rabbi Tzedek ruled, replied Rabbi Goodman. Mr. Frei was liable for the elderly man s doctor s bills but not for the damage to the gift, although there is a moral obligation according to some authorities. Baruch finished reading the article. There s something I don t understand, though, he said. Yes? asked Rabbi Goodman. We learned in Tosafos (B.K. 28b, s.v. v nishof ) that when a person trips on an obstacle and is not injured by the object but rather by the ground below, the owner of the obstacle is not liable, Baruch said. Even if the elderly man slipped on the banana peel, why should Mr. Frei be liable for the injury inflicted by the ground below? That s an excellent point! replied Rabbi Goodman. I was also wondering about that. Yisrael entered the discussion. There s something else I don t understand, he said. We learned that someone who wounds another person has to pay five payments: permanent damage (nezek); pain; medical bills; lost wages; and embarrassment (B.K. 83b). Where do we find, though, that this applies to an injury inflicted by a bor? Why does Mr. Frei have to pay medical bills?

15 Banana Split - Re"peel"ed, cont. Rabbi Goodman said, I ll ask Rabbi Tzedek to explain why he wrote that Mr. Frei is liable for medical bills and for damage inflicted by the ground below. A week later Rabbi Goodman came into class waving an printout. I received a reply today from Rabbi Tzedek about our banana peel question, he announced, and began to read the letter aloud. Dear Rabbi Goodman, I am happy to hear that you use Business Weekly in your shiur to enhance the Gemara you are learning and to illustrate the application of Choshen Mishpat to our daily lives. Both of your points are well taken. In fact, only a person who injures another is obligated in regard to the five payments, including medical bills (C.M. 420:3). However, a person who made a bor is liable only for permanent injury (nezek) that the victim suffered, such as if he remained crippled, tore ligaments or suffered paralysis - but not for medical bills (Pischei Choshen, Nezikin, 7:[8]). The primary purpose of that article was to differentiate between damage to people or animals and damage to inanimate items. The example of medical bills, however, was not an accurate one. Mr. Frei would only be liable if the person who slipped on his peel became, for example, crippled. Regarding an injury inflicted by the ground below or beyond the obstacle, there is a dispute (Gra 411:5). The article simplified the issue by stating that the elderly man landed on the peel itself. It referenced the Sma (412:9), who explains that if a person slipped on water and was injured by the ground beneath it, we consider it as if he were injured by the floor of a pit; the person who spilled the water is liable. Had the man not landed on the peel, though, Mr. Frei would be exempt also from liability for the man s injury (410:31; 411:1). I wish you success in your teaching, and hope that you continue to enjoy Business Weekly. Thank you for writing, Rabbi Tzedek

16 Rear-End Collision Bava Kama 31b - Collision Today we will learn something in Gemara that is relevant to modern traffic accidents, Rabbi Tzedek began. The beauty of Halacha is the way we apply cases in the Gemara to modern situations. Imagine the following scenario, he continued. Reuven is driving along the highway at a steady 60 mph. He brakes suddenly. Shimon, who was driving behind him, can t stop in time and crashes into Reuven, causing damage to both cars. Who is liable for the damage? Avi raised his hand. I think that Reuven is liable, he said. He braked suddenly, which caused the accident. I disagree, said Yitzi. Shimon should have left a proper trailing distance. If he couldn t stop in time, he must have been too close. But if Reuven slammed on the brakes, argued Avi, Shimon might not have had time to stop. Eli waved his hand. Why did Reuven brake? he asked Rabbi Tzedek. Does that makes a difference? It could, replied Rabbi Tzedek. What do you mean? Maybe someone cut in front of him or an animal ran across the road, which isn t his fault, Eli said. Or he might have hit the brakes by mistake, realized that he missed his exit, or got distracted by his kids fighting in the car, which would be considered his fault. We can talk about different situations, replied Rabbi Tzedek. Let s look at the Gemara now; it discusses a similar case. The Mishnah (Bava Kamma 31b) talks about two people who are walking in the street, one carrying a wooden beam and the other carrying a barrel, said Rabbi Tzedek. What happens if they collide and the barrel breaks on the beam? Neat! cried Avi. I wonder if they had insurance then! I doubt it, laughed Rabbi Tzedek. But let s overlook the issue of insurance for today s discussion and focus on the damage liability. Who would like to summarize the mishnah? Yitzi read the mishnah and summarized: If the owner of the beam was first, he is exempt, unless he stopped short without giving warning. If the owner was last he is

17 Rear-End Collision, cont. liable, unless the owner of the barrel stopped short without giving warning. Excellent! The analogy to modern traffic accidents is quite clear, said Rabbi Tzedek. The second driver is generally at fault for a rear-end collision. If he damaged the first car, he is liable; if he was damaged, the driver of the first car is exempt. However, if the first driver stopped unexpectedly, he is considered at fault, unless he gave proper warning (C.M. 379:2-3; Pischei Choshen, Nezikin 1:[79]). Wouldn t the brake lights serve as warning? asked Eli. Yes, if they were working properly, Rabbi Tzedek replied. But the warning must allow sufficient time to stop. For a sudden, total stop, brake lights alone wouldn t be enough. The mishnah here does not seem to distinguish between possible reasons for stopping, Eli noted. In fact, the Gemara on the previous page differentiates between two cases, Rabbi Tzedek said. If the owner of the beam stopped to straighten his load, he is exempt, even if he did not warn the person behind him. Similarly, in our case, if he needed to stop - say, an animal raced across the road - he would be exempt even if he stopped suddenly. He is at fault only if he stopped to rest (see Aruch Hashulchan 379:3-5). What if the first car did not stop short, but slowed down significantly? asked Avi. Rashi (31b, s.v. hayah) implies that the first person is liable in this case also, since he did not walk normally, replied Rabbi Tzedek. But others rule that a person does not always go at the same pace, so the person behind should have left enough distance to stop (P.C., Nezikin 1:[78]). We see that Halacha gives credence to Shimon s claim of a sudden, unwarranted stop by Reuven, the first driver, continued Rabbi Tzedek. But be aware that courts nowadays presume fault is the second driver s in almost all cases of rear-end collisions. The second driver is expected to leave sufficient distance to stop, regardless. How much trailing distance is necessary? asked Yitzi. The two-second rule is the minimum distance you should leave, concluded Rabbi Tzedek. Safe driving often requires three, four, or even more seconds of trailing distance, depending on the speed and driving conditions.

18 Eye on the Ball Bava Kama 32a - Shneihem Ratzim "C'mon, let's go! We're late," called Yanky. "Just a second," answered Ezzi, "I've got to tie my sneakers." The two boys put on their coats, wished Ezzi's parents "Goodbye," and headed out to the JCC. Their basketball team, "Shas Shooters," had earned its way to the finals in the local league. In preparation for the final game, they were practicing on a daily basis. When everyone had assembled, the coach began drills of passing and shooting. Then he split the team into two groups, and they began a high-pressured practice game. Ezzi and Yanky found themselves on opposing teams, guarding one another in a tight manto-man defense. The game continued neck-and-neck most of the way. With four minutes left, the score was A basket here and there would make all the difference. Someone took a chance at a 3-point shot. The ball hit the hoop and bounced high up against the backboard. Ezzi and Yanky jostled into position to catch the rebound, pushing up against each other. As the ball descended, they both jumped up, flinging their hands towards the ball. "Slap," was the sound of Ezzi's hand on the ball; "crunch" was the sound of Yanky's glasses on the wooden floor. The coach blew the whistle for a time out. Yanky rubbed his face. Thank G-d, he wasn't injured, but his glasses were shattered and the frame twisted, having been stepped on in the fight for the rebound. "You knocked off my glasses when you jumped," Yanky said to Ezzi. "And then you landed on them." "I'm really sorry," Ezzi said. "I was just reaching for the ball." "All the same," said Yanky, "you broke the glasses. You're going to have to buy me new ones. We bought them just two weeks ago, and they were quite expensive." "But I didn't mean to break them," replied Ezzi. "It was by mistake." "So what," said Yanky, "You know what they say: 'For mistakes you pay.' We also learned in Mishnayos class, 'A person is always accountable, whether intended or unintended." (B.K. 26a) "But these kinds of things happen all the time in ball games," argued Ezzi. "It's no more my fault than yours. You jumped up and banged into my hand! We learned in another Mishna that if two people were running in the street and bumped into each

19 Eye on the Ball, cont. other they are exempt if they accidentally injured each other. (B.K. 32a)" The coach overheard the debate. "I hear two young dayanim in training," he remarked. Ezzi and Yanky blushed. "I'm not sure what the halacha is, but you know who does?" "Rabbi Dayan!" they both exclaimed. "That's right," said the coach. "Take up the issue with him." After the game, Yanky went home to get his old glasses and called Rabbi Dayan to ask if they could speak with him. Rabbi Dayan welcomed them over. They related what happened, and expressed their respective opinions based on the Mishnayos they had learned. Rabbi Dayan thought for a minute, and then took out his Shulchan Aruch. "Yanky, you are correct that a person is responsible even for damage that he did by mistake," he began. "However, Ezzi is also correct that this kind of accident is routine for basketball games." "A similar question was posed to the Rosh, R. Asher b. Yechiel, who lived 700 years ago in Germany. Two people were jousting. One knocked the other down and then fell on him, blinding him in the process. Is he responsible for damaging the eye?" "The Rosh exempted the person from paying damages on two counts. First, although a person is responsible even for unintentional damage (shogeg), he is exempt from certain unavoidable damage (oness gamur). This is especially true if the damaging person acted properly, and incidental damage occurred on account of his friend's actions." "Moreover, the two people willingly jousted to knock each other down. They entered the contest knowing that it is not always possible to gauge the fall, and implicitly exempted one another from incidental damage as part of the game." "Come look," said Rabbi Dayan. "This halacha is cited in the Shulchan Aruch: 'Two who wrestled with one-another, and one threw his friend to the ground and he fell and blinded his eye is exempt.' (C.M. 421:5)" "The same would seem true in our case," concluded Rabbi Dayan. "Each of you was leaping and reaching up to catch the rebound, which is an expected part of the game. While you should exercise care, it is not possible to control completely what you bump into. You each enter the game with the awareness and understanding that sometimes glasses get pushed off in the course of a game. In such a case, you are exempt for incidental damage." "Thanks," said Yanky. "I see the issue now much more clearly!"

20 Evaluating Value Bava Kama 34a - Tashlumei Nezek The beis medrash of Yeshiva Toras Mishpat was packed with people. The tables where they learned were piled high with books. Between the tables, a number of shtenders (book stands) dotted the beis medrash. One large shtender belonged to Avrumi Klein, who would rock back and forth on it while involved in enthusiastic debate. The shtender, which had been beautiful when it was new, was already a number of years old and had seen better days. It was still fully functional, but some cracks were developing in the wood, and there were gouge marks on it from numerous falls. Its paint job was partially faded. Mendy Blum sat at his table, engrossed in a difficult sugya (topic) about which he was preparing a shiur. He jotted down a few notes and then went over to the library room to pull a few more books off the shelf. He carried the load of sefarim back to his desk. As Mendy hurried back to his desk, he bumped with force into Avrumi s shtender, hurling it into the sharp metal legs of the table behind. The shtender hit the legs at an angle and broke. Mendy righted the shtender and looked at the broken pieces. The wood had splintered badly in a number of places and didn t look like it could be reasonably fixed. What happened? asked Avrumi, running over. I was carrying too many books and wasn t watching where I was going, said Mendy. Definitely my fault. I ll pay you for it. The question is, how much? said Avrumi. A new shtender like this costs $150, but it was already five years old. It doesn t seem fair that you should pay the full amount. On the other hand, you were using it fine, said Mendy. You could have used it for many more years and wouldn t have had to pay anything. Now you have to go buy a new one. It s still not right to accept the full price, said Avrumi. It s not exactly in perfect condition. There should be some guidelines in halacha how to evaluate the damage. Rabbi Dayan is sitting at his table, said Mendy. We can ask him; he should know. Mendy and Avrumi took the broken shtender over to Rabbi Dayan. Rabbi Dayan saw them coming with the broken pieces. Looks like there s a case of damage here, said Rabbi Dayan. What happened?

21 Evaluating Value, cont. I knocked it over, said Mendy. It s clearly my fault, but the question is: How much to pay? A person who damages an item is responsible to repair it, if typically repaired, said Rabbi Dayan, or to pay the value of the damage, if not typically repaired (C.M. 387:1; Shach 387:1). How do we evaluate the value of the damage? asked Mendy. If the item was new and the damage was a total loss, it is easy to ascertain the value, said Rabbi Dayan. However, it is difficult to ascertain the value of a used item. Classically, the value was the item s worth on the used-item market. The Nesivos (148:1) even seems to suggest that a person who damages something that cannot be sold is exempt, even if it is of monetary worth to the owner. Besides the fact that others dispute this (see Kehilos Ya akov, B.K. #39), it is suggested that his exemption never included goods that were useful to other people as well (Minchas Shlomo 3:104). But secondhand items are usually sold nowadays at far less than their actual value, argued Avrumi. People are used to buying from stores, so even brand new, unopened items sold on ebay run at only 80% of their cost, and slightly used items lose significant value. That is true, said Rabbi Dayan. Therefore, most batei din rule nowadays that we should estimate the item s true monetary worth to its owner. How can this be evaluated? asked Mendy. One way is to amortize the item s cost over time, said Rabbi Dayan. Thus, if the expected lifetime of an item is ten years and five years have passed, it would be evaluated at roughly half its cost (Mishpetai HaTorah I:24). Of course, there are additional factors to consider, such as the condition of the item and the depreciation curve of this particular item. What if the damaged item is not a total loss? asked Mendy. Halachically, the damaged item remains property of its owner and the one who damaged is responsible only to pay the differential, said Rabbi Dayan. He is not required take the damaged item and replace it for the owner with a new one. This applies whether the item is still usable for its initial purpose or valuable only for its parts (403:1).

22 Seamingly Simple Bava Kama 34a - Tashlumei Nezek You ve been growing like crazy this year! Mrs. Ehrlich said to her son, Rafi. Your Shabbos suit is already too short. You need a new one. Mrs. Ehrlich took Rafi to a local store and they chose a navy blue suit. The jacket fits you perfectly, Mrs. Ehrlich said. We just have to hem the pants. Our neighbor, Mrs. Cutter, is a seamstress; I ll ask her. Mrs. Ehrlich called to ask if she could bring Rafi over to be measured. I m sorry, but I m not home tonight, Mrs. Cutter replied. You can bring it over tomorrow. I m sleeping over at a friend s house tomorrow night, though, Rafi said. And the following night there s a learning program at school. That s okay, said Mrs. Ehrlich. I can measure the pants on you and bring them over to Mrs. Cutter. Rafi put on the pants and Mrs. Ehrlich measured them. Your inseam is 26 1/2 inches, she said. We ll make it 27, so that the pants will last a little longer. The following day, Mrs. Ehrlich brought the pants over to Mrs. Cutter, who was busy at her sewing machine. I bought Rafi a new suit, she said. Please hem the pants at 27 inches. Mrs. Cutter grabbed a paper and jotted down: Hem inseam at 27 inches. Will the pants be ready by the middle of the week? Mrs. Ehrlich asked. I ll try my best, said Mrs. Cutter. I have a lot of other work already waiting, but I will make an extra effort to do the pants. Late the following night, Mrs. Cutter finally got to the pants. Rubbing her eyes, she read the note: Hem inseam at 24 inches. Mrs. Cutter measured 24 inches, hemmed the pants and cut off the excess material. As she put away the note, she realized that it actually said, Hem pants at 27 inches. She had scribbled the seven quickly and mistakenly read it as a four! Wearily, Mrs. Cutter looked at the pants, hoping that enough material remained to restore it to 27. Unfortunately, there wasn t. She could add a piece to the bottom with delicate stitching showing, but it certainly wouldn t look as nice. I ve ruined these suit pants, she thought to herself as she shut down her machine

23 Seamingly Simple, cont. for the night. Now what? The following morning, Mrs. Cutter told her husband what had happened. What do I do with these pants? she asked. And what about the rest of the suit? I m not sure what the halacha is, her husband said. I ll ask Rabbi Tzedek. Rabbi Tzedek said, Your wife is responsible for the damage to the entire suit. However, if Mrs. Ehrlich has the possibility of selling it to someone who can wear it, even at a discount, your wife is only responsible for the differential in price. Rabbi Tzedek then explained, A paid professional who damaged in the course of his work is responsible, unless it was due to circumstances completely beyond his control (C.M. 306:4; 378:1). Furthermore, when damage is done to part of a set that is sold only as a whole, the damage is to the whole set. Therefore, your wife is responsible not only for the value of the pants, but for the entire suit, since the owner can no longer wear it (see Mishpetai Hatorah 1:22). But is there really damage here? asked Mr. Cutter. The pants are in perfect condition, for someone with an inseam of 24 inches. Whether the pants have an inseam of 27 or 24, their worth is the same! If the pants were intended for sale, this would be true, said Rabbi Tzedek. However, these pants are intended for use by the owner, not for sale. Therefore, since they are not wearable, it is considered damage even though there is no loss in inherent value. If it is possible, though, to sell the suit to someone else whom it will fit, say at a discount of $50, your wife is obligated to pay only this differential. Who has the responsible to try to sell the suit? asked Mr. Cutter. This is Mrs. Ehrlich s responsibility, said Rabbi Tzedek. When someone s property is damaged it remains his, so the one who damaged is responsible only to pay the differential. He is not required to take the damaged item and replace it with a new one (403:1). This is true also for a worker who did not follow the instructions of his employer properly; his variation is not considered as stealing the material, which would have required him to replace it (306:3).