Hilchos Choshen Mishpat
Volume I : Number 3
Causing Injury To Protect Your Property
- Twice in a period of six months, burglars have broken into the
apartment of someone who lives on the top floor of an apartment building.
The person who lives there has figured out that their method of breaking
in is by going up to the roof of the building and lowering themselves onto
metal poles protruding from his porch (for the purpose of hanging out his
laundry - those of you who live in Israel know exactly what we're talking
about!), and from there they would climb onto the porch and into the
apartment. He loosened these metal poles, and left them lightly connected.
Sure enough, after a month the burglar returned and tried to lower himself
onto these poles, only to crash down to the ground and severely injure
Was the occupant of the apartment permitted to do what he did? If not, is
he obligated to compensate the burglar for the injuries?
- If a person lives in a private home, and wishes to booby-trap his
property by digging large holes and covering them lightly with leaves and
branches so that any intruders would fall in and injure themselves, is he
permitted to do so?
What is the Halacha?
- In the first question, it was permissible for the occupant to loosen
the bars, and he has no liability for the injuries caused to the burglar.
- In the second question, it is prohibited for a person to create a
hazard in his property, even if his intention is to protect his
possessions from thieves. Therefore, if, for example, you see that people
are stealing food from you, it would be forbidden to poison the food to
cause suffering to the thief. Instead, the food should be protected
properly in a way that the thief would never be able to get to it.
However, if you did booby-trap your property, or poison food that was
then stolen, you are not obligated to pay any damages incurred by the
At first glance, it would appear that Halachically it would be entirely
permissible to create traps and hazards in your property to protect it
and yourself from unwanted intruders, and if injury would be caused by
the traps, it would be considered self-inflicted. This is because we
don't find that a property owner is responsible to stop his property
from injuring someone or something that has illegally entered his domain.
In the words of the Gemara, he has every right to say " Torchuh B'Reshusi
Mai Boei?" (What is your ox doing in my property?) This also seems to be
the conclusion of the Gemara in Bava Kamma 33a, that discusses the case of
workers that have entered their employers home to demand payment of their
wages, only to be bitten by his guard dog. The Gemara says that the
employer does not have to pay for the injuries inflicted by his dog
because the workers caused this to themselves.
However, the Gemara in Bava Kamma 15b teaches us the following Halacha:
Rav Nosson says that a person is not allowed to raise a dangerous dog, or
to place a weak ladder in his home, because the Torah says (Devarim 22:8)
"V'Lo Sosim Domim B'Vaysechah" (And You Should Not Place Blood [Danger]
In Your House). The Maharsha explains that the Torah is teaching us that
even though what you are doing may be no threat to your own family since
they are known to the dog or aware that the ladder is weak, and even
though you are raising this dog only for protection from burglars, it is
still forbidden to keep this danger in your home. The Sefer HaChinuch
(Mitzvah 547) writes that this prohibition even applies if the danger
could only cause harm and not death. (See the Teshuvos Dvar Avraham
Vol. 1 Ch. 37:25, and the Chazon Ish in Likutim Ch 18 & 19).
We see from the above, that the Torah does forbid the creation of
danger in your home, even for the purpose of catching thieves. However,
despite this prohibition, if someone was injured after illegally entering
your home, you are not liable for any damages incurred to them. The
reasoning behind this is, since the injured party (Nizik) came to the
damaging party (Mazik), this case is classified under the category of
"Bor" (lit. a pit, see below ), and Bor is only a liability to you if
you've placed it in a public domain, not in private property. (See
Shulchan Oruch Choshen Mishpat 410:6 for an elaboration on this concept).
However, we must ask the following question on the explanation of the
Maharsha: In Mesechta Derech Eretz Rabba Ch. 5 we are told a story about
Rabbi Yehoshua. He invited a guest home for the night, and gave the
guest a room that was located in the attic. Suspecting that the guest
may try to leave during the night with some of his household possessions,
Rabbi Yehoshua removed the ladder to the attic, without his guest's
knowledge. During the night, the guest did try to "escape with the loot"
and, assuming that the ladder was still there, fell to the floor and
severely injured himself. The Gemara there tells us that Rabbi Yehoshua
publicly proclaimed that what he had done was permitted according to
Halacha. This seems to contradict the statement of the Maharsha, that it
is forbidden to create danger in your home, even to trap thieves!
We can answer this question with the following distinction. In the case
of Rabbi Yehoshua, the ladder didn't cause the damage, rather it caused
the thief to fall to the floor and be injured by the floor. The floor
cannot be classified as a "Bor" as long as it is straight and even. The
thief therefore caused his own injuries. He wanted to be aided by the
property of Rabbi Yehoshua (the ladder) as a means to steal Rabbi
Yehoshua's possessions without getting injured. Obviously, the Torah
doesn't obligate someone to offer a thief the ability to steal his
possessions! (The story of Rabbi Yehoshua is directly comparable to
Question A, removing the ladder is similar to loosening the metal bars).
On the other hand, when your property is inflicting the actual damage,
for example, your vicious guard dog, your poisoned food, or your weak
ladder that has been left in a place where you can expect that it will be
used (as opposed to the loosened laundry bars whose normal use is not for
climbing on), this is called putting a Takalah (hazard) in your home.
Even though, ultimately the damage to the thief may be inflicted by the
floor, since the homeowner's property is directly involved in causing the
injury, the Torah forbids having this danger in your home. One possible
reason for this is because someone in your home may forget about the
danger and inadvertently be injured. Another possible reason is because
it is only permitted to injure a thief if you can't save your money in
any other way. This is stated in Sanhedrin 49a, in the case of someone
who is being pursued by a person who wants to kill him (Rodef). The
Gemara says that if the potential victim could save himself by injuring
his attacker, he has no right to kill him, as in the story of Avner and
Assael (see Rashi there). This is also stated in the Rosh in Bava Kamma,
in Perek HaMeniyach (13), that to protect yourself from an attacker you
may only inflict as much injury as is necessary to stop the attack.
Therefore, in any of the above cases, if the potential victim would
directly injure the thief or attacker, above and beyond what is
necessary to save himself or his property, he would be liable to pay
for any additional injuries incurred.
In the case of an attack dog, poisoned food, or a weak ladder, although
according to the Maharsha it would be forbidden to use these methods
to protect your property, if you were to do so, you would have no
financial liability since these would be classified as a "Bor" in a
private domain. However, it is necessary to find a more preferable way
to protect the property.
Bor - The first Mishna in Bava Kamma tells us that there are four Avos
Nezikin, primary categories of damages, for which a person can be held
responsible. Each has sub-categories, and different defining concepts
They also have differences as to the extent of their liabilities. They
are as follows (according to Rav's explanation of the Mishna):
HaShor - literally "The Ox". Included in this is any property that you
have that needs to be guarded to prevent it from injuring others.
HaBor - literally "The Pit". If you were to create a hazard in a public
domain by digging a ditch, leaving a rock in a place that people may trip
over it and injure themselves, etc. The defining principle in this
category is that the injured party came to it.
HaMaveh - literally "The Person". A person is held liable for any damage
that is a result of his direct action, unless it was involuntary.
HaHever - literally "The Fire". If a person were to ignite a fire and it
would travel into someone else's property and cause damage, he is liable.
The defining principle in this category is that no damage could have
occurred without the involvement of an external force- in this case the
wind that caused the fire to spread. Other examples would be if you left
something dangerous such as a rock, knife, or hammer on your roof or
balcony, and a wind blew it off and it inflicted injury or damage.
This class is translated and moderated by Rabbi Aaron Tendler of Yeshivas
Ner Yisroel in Baltimore. Rabbi Tendler accepts full responsibility for
the accuracy of the translation and will be happy to fax originals of the
articles in Hebrew to anyone interested.
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Please Note: The purpose of this column is to make people aware of Choshen Mishpat
situations that can arise at any time, and the Halachic concepts that may be used to resolve them. Each
individual situation must be resolved by an objective, competent Bais Din (or Rabbinic Arbitrator) in the
presence of all parties involved!
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