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Shabbat Parashat Vaeira | 5769

A persons obligation to pay for damages that occurred in unusual circumstances

Hemdat Hadaf Hayomi

Rabbi Ofer Livnat

 We learned in the Daf Yomi this week (Mishnah, 26a) the principle that: “A person is always liable for damages he causes, whether unintentionally or intentionally, whether he is awake or asleep.”

This statement seemingly implies that a person is obligated for any damage he does, even if unusual circumstances that are out of his control cause him to do the damage. The Talmud later limits this principle and determines that this rule only applies to the basic compensation for damages. However, this principle does not apply to additional obligations in which a person would be obliged if he would injure another person. These obligations are:

·               Compensation for tza’ar [suffering]

·               Ripuyi [compensation for medical expenses]

·               Shevet [compensation for loss of work]

·               Boshet [compensation for humiliation inflicted].

Regarding tza’ar, ripuyi, and shevet, one is only obligated when damage is caused out of negligence. Payment for boshet is obligated only when one has intentionally caused damage.

The Talmud Yerushalmi (chapter 2, halachah 5) limits the responsibility for damages caused during one's sleep to a case where the object, that was later damaged, was already in place and one came and laid down to sleep next to it. However, in a case where one fell asleep, and someone subsequently laid down to sleep next to him, or placed vessels next to him, he is exempt for damages caused during his sleep.

The Rishonim debate the reasoning of the Yerushalmi. The Tosafot (Ibid., 28b, “u’Shmuel”) learned from the Yerushalmi that a person who damages in unusual circumstances is only obligated in an instance where he was able to take precautions to prevent the damage. However, if the circumstances would be completely beyond his control, he would be exempt. Therefore, if the object damaged was placed next to him only after he fell asleep, he would be exempt. The Ramban (Baba Metziah 82b) argues, explaining that a person is obligated on all damages he does, even if the circumstances were completely beyond his control, and even if he damaged as a result of a stormy wind, “such as the kind experienced by Eliyahu the Prophet.” The reason for the exemption in the Yerushalmi is due to his friend’s negligence when he lay down next to him, and thus he is responsible for the damage caused to himself.

The Rambam’s opinion seems to be in between the first two approaches. In his analysis of the Yerushalmi, the Rambam explains (Chovel u’mazik, 1: 11) that one is exempt because of his friend's negligence, which is like the Ramban’s understanding of the Yerushalmi. Nevertheless, the Rambam writes (Chovel u’mazik, 6: 4; and see also Nizkei Mamon, 14: 2) that there are cases that are considered as “acts of G-d,” in which a person is not held responsible for damages he caused. It seems that what characterizes these cases is that the person was aware of the dangers and took the necessary precautions and nevertheless the damage came about. Thus, these cases are considered an “act of G-d,” and one does not attribute the responsibility for the damage to him.

The Ramah, (Shulchan Aruch 378: 1-2; 421: 4) ruled like the viewpoint of the Tosafot that a person is exempt when there are circumstances beyond his control. However, the Shach (378, sif katan 1) inferred from the wording of the Shulchan Aruch (378: 1-2; 421:1) that he ruled like the Rambam.


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This edition of Hemdat Yamim is dedicated to the memory of Shirley, Sara Rivka bat Yaakov Tzvi HaCohen z”L
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R ' Meir ben Yechezkel Shraga      Brachfeld


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