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Shabbat Parashat Teruma | 5769

The Limits to One's Responsibility for Damages

Rabbi Ofer Livnat

Baba Kama 56-62


This week in the Daf Hayomi (62a) the Gemara makes an important distinction between a situation where a person actively damages with his hands and a situation where a person indirectly causes damage through his negligence.  An example of the second situation is where someone was supposed to guard an object and did not guard it properly. The situation the Gemara discusses is regarding a person who gave someone a gold coin to watch, but told him it was a silver coin. The problem in this case is that the coin is really a gold one, but the watcher thinks it's a silver coin whose value is much less. The Gemara distinguishes between two ways the one given the coin can cause damage to it. If he directly damaged the coin, such as by throwing it into the sea, he has to pay its real value as a gold coin. However, if he did not guard the coin properly and because of his negligence the coin was lost, he only has to pay for a silver coin. The Gemara explains the reasoning behind this distinction as follows: in any case, he should not have directly damaged the coin, and he therefore has to pay its real value. However, when the coin was damaged as a result of his insufficient watching, since he only accepted upon himself to guard a silver coin, he cannot be made to pay for more than that.

From this statement it appears that when a person directly causes damage he is liable for the entire value of the damage that he did, regardless of what he thought he was damaging. However, a few lines later, the Gemara appears to contradict this conclusion. The Gemara deals with a case where a person took someone else's box that was used for storing money and threw it into the river. The owner of the box claimed that the box contained a very expensive stone. The Gemara deliberates whether people would normally put an expensive stone in such a box. However, this discussion appears to be irrelevant in light of the above conclusion. Since the damager in this case did the damage in a direct fashion, even if people do not normally put an expensive stone in such a box, he should be liable.

The Rishonim gave different solutions to this question. The Tosafot (d"h Mi) explain that in a situation where a person could not have been aware that he was damaging what he ended up damaging, he is exempt even if he did the damage directly.  Tosafot claim that the deliberation of the Gemara is even in a situation where the box owner had proof of the stone's presence in the box.  Therefore, if people do not usually put expensive stones in such a box, one cannot obligate someone who threw away such a box for damage of an expensive stone. However, in the case where someone gave a gold coin for keeping and told the keeper it is a silver coin, the keeper could have realized that it is really a gold coin, and the giver only told him it was silver because he was afraid that if he knew it was gold he would not agree to guard it.

The Rambam (Chovel U'Mazik 7, 18) and other Rishonim disagree and claim that if the box owner had witnesses that there was an expensive stone in the box the damager would have to pay for it, since he did the damage in a direct fashion. The deliberation of the Gemara was in a situation where the box owner did not have such proof. The Sages instituted that in a situation where a person caused damage but does not know what he damaged or its value, like the case where the damager threw a box into the river without knowing its contents, then the person who was damaged can swear as to the value of the damage and receive full payment from the damager. However, if the one who was damaged claims that there was an item in the damaged object that is not generally there, such as an expensive stone in a box usually used for money, in this situation, the Gemara deliberates whether he can swear as to the presence of an expensive stone. Therefore, the Rambam rules that a person cannot swear in such a case, and only if he has proof as to the presence of the stone would the damager be obligated to pay.

The Shulchan Aruch (388, 1) rules in accordance with the view of the Rambam, that one who directly damages is liable for the entire value of the damage, even if he could not have been aware of the value of the damaged objects.  However, if the one damaged does not have proof of the presence of such objects, he would not be able to swear that they were indeed there. The Remma rules in accordance with the Tosafot, that even if he directly causes damage, he is not liable for what he could not have been aware of. The Shach (ibid 6) claims that most of the Rishonim agree with the Rambam and he rules this way as well.  

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This edition of Hemdat Yamim is dedicated to the memory of
of Gershon (George) ben Chayim HaCohen Kaplan

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 R ' Meir ben Yechezkel Shraga  Brachfeld


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