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Shabbat Parashat Vayeitzei | 5769

Accountability for Damages When Moving Items

Ask the Rabbi

[The following is adapted from part of a din Torah ruling under our beit din’s auspices.]

Question: Reuven hired Shimon to move household items. The large quantity of items required, in addition to the moving truck, a trailer-car pulled along. The packers improperly put more and heavier things in the trailer than in the truck, apparently beyond its legal weight. This could have caused the tires to blow out or increase the likelihood of an accident, which could have caused minimal damage to the load, considering the trailer’s contents, which were mainly not breakable. During the moving, a fire broke out in the trailer, which destroyed almost all of its contents within minutes despite diligent effort to put out the fire and save items. Neither side was able to provide a logical explanation of how the fire started. Part of the question was whether Shimon’s negligence (p’shiya) in regard to one element of his work obligates him to pay for the eventual damage.

Answer: A fire that could not have been readily anticipated and/or prevented is an oness (extenuating circumstance), for which a shomer sachar (paid watchman) like Shimon is exempt (Bava Metzia 93a).There is a machloket, which appears in different applications throughout Shas, regarding techilato b’pshiya v’sofo b’oness (=tbpvsbo) - one who was negligent in his efforts but the damage eventually came through an oness. We rule that in tbpvsbo, one must pay (Shulchan Aruch, Choshen Mishpat 291:6), provided there is a chance that the damage, unexpected as its manner ended up being, would not have happened had the p’shiya not been done (S’ma ad loc.:10).

In our case, the fire does not seem to have been related to the overloading of the trailer. However, in regard to the extra items that should not have been added to the trailer, had they been put in the truck as they should have, rather than the trailer, they would not have been burnt. The simple rules of tbpvsbo would, then, seem to obligate Shimon.

One can ask, though, what the halachic logic of obligating tbpvsbo is. Why should one pay for damages that were related to the p’shiya only by chance and not logically? The two main possibilities are as follows: 1) When one is negligent, he becomes potentially obligated to pay, although he is exempt if no damage results or occurs in a manner totally unrelated to the p’shiya. The later is not what obligates him. 2) An oness that happens in the aftermath of p’shiya is a continuation of the p’shiya, which obligates him. It is, thereby, the time of damage that obligates him. The practical difference could be in a case like ours, where the damage that could have been feared to come from the p’shiya would have caused limited damage, whereas the eventual oness caused much greater damage. According to #1, the monetary obligation does not exceed that which should have come from the p’shiya, which in our case is minimal. According to #2, the eventual damage should be considered done by p’shiya and obligate Shimon fully.

Tosafot (Bava Kama 23a) posits that if one did a p’shiya in which he would have shared responsibility with another and then an oness happened that related to him alone, he pays no more than he would have for the p’shiya. Rav Soloveitchik (R. Reichman’s Notes to Lectures, ad loc.) and Rav Charlop (Beit Z’vul, Bava Kama p. 62) say that Tosafot assumes like #1. We have not found those who argue on Tosafot. Yet, apparently others posit #2. R. Akiva Eiger (Bava Metzia 36a, 29) understands that Abayei and Rava dispute which approach is correct. Rava, like whom we pasken, posits #2. The Netivot Hamishpat (292:13) assumes that we estimate the damaged object’s value according to the time of damage, not of p’shiya, which also seems to support #2.

[Further deliberation exceeds our scope. We hope you have enjoyed a glimpse at some issues.]


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