Shabbat Parashat Tazria Metzora 5785

Ask the Rabbi: Scratching Improperly Parked Cars

Question: When I ride my bicycle, I often come across illegally parked cars that make it challenging to get through. While I am careful, I might accidentally scratch a car. Would I be responsible to pay damages if I did?

Answer: If Reuven left his property in a place/manner it has no right to be, and Shimon’s animal went by and purposely kicked it, Shimon must pay damages, but Shimon is exempt from the animal’s inadvertent damage while walking by (Bava Kama 32a; Shulchan Aruch, Choshen Mishpat 389:20). You might compare your bicycle to Shimon’s animal. However, the exemption of inadvertent damage to improperly positioned objects applies to damage done by one’s animal, not done by a person (Tosafot, Bava Kama 27b; the person powering/steering the bicycle is considered a direct damager).

The mishna (Bava Kama 27a) says that if Reuven left his vessel in the public domain and Shimon tripped over it and broke it, he is exempt. The gemara (ibid. 27b) wonders why we cannot expect Shimon to be careful, and cites four answers. The most accepted one (Shulchan Aruch, CM 412:1) is that people are not expected to inspect their walking path. You might claim that, similarly, you cannot be expected to lead your bike through a tight place without possibly scratching an obstructing car. However, poskim (Nimukei Yosef to gemara ibid., Yam Shel Shlomo, Bava Kama 5:9) say that the leniency is limited to cases where the damager was unaware that the object was present, but when he knows there is something to avoid damaging, we expect him to succeed. The fact that the object is not supposed to be there and the damager’s lack of intent to damage do not seem to exempt.  

A stronger ground for exemption, although not for too many cases, is based on Rav’s explanation to the gemara’s exemption – in the mishna’s case, Reuven’s vessels made the public path impassable. This is based on the concept that in certain cases, a person can take the law into his own hands to protect his interests (Shulchan Aruch, CM 4:1). So, if the situation warrants it, a person may purposely break the vessels in order to get by, and he certainly is exempt if when trying to squeeze by, he accidentally did damage (Bava Kama 28a; Shulchan Aruch, CM 412:2).

Regarding your question, each case can be different and can be unclear. How crucial is it to squeeze by (i.e., is there no reasonable detour?)? How likely is it that you will damage the car, and does it make a difference? What is the halacha if you could have gotten by without damage, but you did a poor job? The Aruch Hashulchan (CM 412:4) seems to take a measured, practical approach to this matter, understanding the passerby’s predicament, but gives few details. I saw an approach that gives great leeway to the passerby (Mishpetei Hatorah, Bava Kama 53), but it was low on sources and proofs.

There is a third reason not to have to pay in certain cases. The damage a slow-moving bicycle might make to a car is likely to be minor. Damage payment is either to fix the object or to pay for its depreciation. (There will not be a need to replace the car.) In Living the Halachic Process (I, J-6) we pointed out that only when the normal thing is to fix such damage can the owner demand it to be fixed. This might depend not only on the extent of the scratch but also how nice the car looks other than the new scratch. When repairs are not called for, one needs to determine depreciation, and depreciation is also affected by the above factors. For an old, beat-up looking car, the amount due could thus be 0 NIS.

It is indeed a good idea to be very careful, not only to be nice (even if you resent illegal parking), but to avoid the need to deal with a likely need to pay something. (Leaving a note for the car owner sometimes opens a “Pandora’s box” to unreasonable demands.) If you did scratch such a car but in a way that your conviction (which will often call for specific rabbinic advice) is that you owe nothing, you are not required to present yourself to the car owner (see Living the Halachic Process III, I-5).

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