Hilchos Choshen Mishpat

Volume I : Number 3
Causing Injury To Protect Your Property

Question:

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 himself.
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?

Answer:

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 thief.

Sources:

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.

Feedback is appreciated! It can be sent to atendler@torah.org.

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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!