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Shabbat Parashat Yitro | 5769

Guidelines to Determine Liability for Damages

Hemdat HaDaf Hayomi

Rabbi Ofer Livnat

We learned a few weeks ago, in the Daf Hayomi (26a), that "a person is always liable for damages, whether done intentionally or unintentionally." From this rule it appears that one is liable for any damages he causes. However, we see from many statements in the Gemarah, that this rule is not always applicable and there are cases for which one is not liable. In a section from this week's Daf Hayomi (48a-b), the Gemarah lays out the guidelines regarding this issue. The Gemarah distinguishes between three situations:

  1. The damager was without permission and the damaged with permission.
  2. Both were with permission or both without permission.
  3. The damager was with permission and the damaged without permission.

If the damager was acting without permission and the damaged was present with permission then the rule of "a person is always liable" is in force. A classic example of this is when the damager entered one's property without permission and caused damage there. Furthermore, even when both are in a public domain, if the damager did not act in accordance with the normal behavior there, for example, he ran instead of walked; he is liable even for damages that were done unintentionally.

If both were with permission, for example, if both were walking in a public domain, or both were without permission, for example, if both were running in a public domain, the Gemarah distinguishes between different circumstances. According to Rashi, the distinction is whether the damage was done in an active manner or a passive manner. If the damager ran into someone and caused damage, he is liable. However, if the person who was damaged ran into him, he is exempt. If both were active and ran into each other, it is considered as damage done passively, and he is exempt. According to the Rambam (Nizkei Mamon 6, 1-3) the distinction is regarding the intent of the damager. If he did the damage intentionally, he is liable, while if it was done unintentionally, he is exempt. However, it appears from the Rambam (ibid 8, and other places) that any case of negligence is also considered damage done intentionally.

If the damager was with permission and the one damaged was without, for example, if the one damaged entered the property of the damager without permission, according to Rashi, the damager is exempt even if the damage was done actively, since he was not aware of the presence of the one who was damaged. Only if he was aware of his presence would he be liable for damage done actively. According to the Rambam, here too the distinction is between whether the damage was done intentionally or unintentionally.

These guidelines may be implemented, even today, in all cases. For example, regarding car accidents, which unfortunately are very common, we would utilize these guidelines to determine who is liable for the damages.      

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This edition of Hemdat Yamim is dedicated to the memory of

HaRav Professor

Reuben M. Rudman ob”m


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 R ' Meir ben Yechezkel Shraga  Brachfeld



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