Hilchos Choshen Mishpat
Volume I : Number 28
Damage As A Result Of Negligence
- Reuven arrived in Shul to pray, and removed his glasses and placed
them on an empty chair that was next to him. Shimon, who arrived a little
later than Reuven, did not notice the glasses and sat down on them, and
broke the glasses.
Is Shimon Halachically obligated to pay Reuven for the broken glasses?
- Reuven used a glass cup owned by the Shul to have a glass of tea while
he was studying. After finishing the tea, Reuven placed the glass cup on
an empty chair. Shimon did not notice the glass, and sat down on the Chair,
causing the glass to fall to the floor and break.
Who is responsible to pay the Shul for the broken glass?
- In both of the above situations, Shimon would not be liable for the
damage that he had unintentionally caused. This is true even if he usually
sat in another seat in the Shul, and just this once decided to sit next
However, this is only because Shimon had no knowledge of the items at all
at the time that he sat down. If he had seen them but had forgotten that
they were there and sat on them, he would be obligated to compensate
Reuven (in Question A) and the Shul (in Question B).
- Regarding Reuven's liability, in Question B he would be obligated to
pay the Shul for not properly caring for the Shul's property. In Question
A, since he is the owner of the glasses, he caused his own loss by placing
them on the chair.
The Mishna in Bava Kamma (2:6) states that "Odom Muad L'Olam", a person
is responsible for damages caused by his actions even if done
unintentionally. However, the Gemara there (27b) quotes a statement of
Ulla that it is not customary for a person to constantly check the path
that he is walking on to make sure that he won't damage someone else's
item that may be in the way. Therefore, if someone were to
unintentionally damage someone else's item that is in his way as he is
walking, he would not have to pay for this item.
Tosafos there (D'H U'Shmuel) explain the above distinction made by Ulla
as follows. Although a person is held responsible even for unintentional
damages, this is only if the damage could have been prevented if the
person had exercised a little more care. Tosafos call this "Onnus K'Ein
Aveidah", unintentional damage that is similar to losing something. Just
as the loss of an item can generally be prevented with a little foresight,
so too for a person to be liable for damages it must be damage that could
have been prevented with a little foresight. However, this is only where
it is expected for people to act with caution. Since, generally, people
are not cautious of what may be in their paths as they walk along, there
would be no liability in such a case.
Consequently, in the two cases discussed in our question, if Shimon did
not notice the glasses or the cup on the chair before sitting down, since
it is not customary for people to keep breakable things on chairs in the
synagogue, Shimon can argue that there was no negligence on his part at
all, since it would be similar to something laying in his path, for which
he has no liability, as per the statement of Ulla.
However, if Shimon did notice the glasses on the chair, but forgot that
they were there and ended up sitting on them accidentally, Reuven can
argue that the damage was a result of a small degree of negligence on
Shimon's part, and he would be liable. He should have moved them
immediately upon noticing them to insure that he would not break them.
Although Reuven may have acted improperly by placing them on the chair,
that does not mean that he is giving people license to damage him.
Therefore, Shimon's actions are considered "Onnus K'Ein Aveidah", and he
will be responsible for damages as stated in the Mishna.
The Nesivos Mishpat (Siman 291:7,14) and the K'tzos HaChoshen (319:3)
both state that although a person can not be held liable in Bais Din for
damage that indirectly resulted from his actions (Gramma B'Nizakin), if
you were to move someone else's item from a place where it is protected
from damage or theft to a place where it will now be exposed, and it was
damaged as a result of this, this is considered as if you directly
damaged it and you are obligated to pay for the item. Therefore, in
Question B, although Shimon can not be held responsible for the damage if
he was totally unaware that the cup was there, Reuven can be held
responsible for placing the Shul's property in a spot where it is exposed
to damage. Therefore, he will be obligated to compensate the Shul for
loss of it's property. However, in a case that Shimon is held liable for
damages, i.e. he was aware of the potential to damage but did not
exercise foresight, the liability is solely Shimon's, and Reuven has no
responsibility at all. [Proof of this may be found in Tosafos in Bava
Kamma 30a (D'H V'Chayav Baal HaKosel). See also the Nimukei Yosef there,
particularly his quote from the Ramah.]
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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
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