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Shabbat Parashat Tzav | 5768

Who Pays for Damages That a Hired Driver Causes to a Third Party (based on Halacha Psuka, vol. 40, condensation of a psak of Beit Din Gazit, Tzfat)

P'ninat Mishpat




Case: The plaintiff (=pl) at times drives a vehicle for the defendant (=def ). Once he caused an accident, for which he was charged for both a criminal violation and a monetary suit for damages. He was offered a plea bargain according to which, he would admit fault in the monetary case and be spared of the criminal claim. Pl demands that def reimburse him because def did not tell him that he wasn’t insured for third party damages as is customary. Def responds that it is sufficient that he had the minimum insurance and that, in any case, pl may not make an admission to def’s detriment just to protect pl from criminal prosecution.

Majority Ruling: [We will omit the matter of pl’s culpability for damages to def’s vehicle and the minority opinion.]

The mishna (Bava Kama 98b) says that if a builder who is hired to undo a wall breaks stones, he has to pay. The Meiri and R. Yonatan say that this obligation applies even to third parties who were injured by the stones because one who damages directly is always obligated. R. Yonatan adds that while the employer may be exempt if the worker is paid by time, the employer is obligated like a watchman for damages. However, the above applies when the worker caused the damage as part of the fulfillment of his job. Since pl was negligent while driving in a manner that was out of the scope of his job, def is not obligated to pay the third party.

On the other hand, pl claims that he would not have accepted the responsibility of driving the vehicle had he known that he was uninsured regarding third party damages. Customarily, an employer insures a car for such damages, and thus pl’s claim is valid. The Mabit (III, 154) talks about an equivalent case, where Reuven appointed Shimon to buy something from a non-Jew and then backed out, which resulted in the court’s charging Shimon for the transaction. The Mabit said that since Reuven, not Shimon, was responsible for the cancellation and payment, he must reimburse Shimon. So too, in this case, def has to pay pl for the amount that insurance would have covered according to the custom.

Since def will have to pay for what the courts will obligate pl, it is forbidden for pl to admit fault in court. This is equivalent to the gemara’s (Bava Kama 60b) conclusion that one is forbidden to save himself by causing the damage of his friend’s property. Tosafot (ad loc.) and the Shulchan Aruch (CM 388:2) say that the question is whether, after saving his life through someone else’s property, he is responsible to pay (which he is). In this case, pl does not admit that he is fully at fault but says that saying so is worthwhile for him. As long as that admission has a negative financial impact on def, pl cannot do so without paying for the consequences.

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This edition of Hemdat Yamim is dedicated in loving memory of

R ' Meir ben Yechezkel Shraga Brachfeld


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