Friday, February 12, 2010

Multiple mazikin - who has to pay?

This week’s sedrah mention various types of nizokin (damages):

A person who damages another person;
עַיִן תַּחַת עַיִן שֵׁן תַּחַת שֵׁן יָד תַּחַת יָד רֶגֶל תַּחַת רָגֶל.
“An eye for an eye, a tooth for a tooth, a hand for a hand, a leg for a leg.”

A pit:
-וְכִי יִפְתַּח אִישׁ בּוֹר אוֹ כִּי-יִכְרֶה אִישׁ בֹּר וְלֹא יְכַסֶּנּוּ וְנָפַל-שָׁמָּה שּׁוֹר אוֹ חֲמוֹר. בַּעַל הַבּוֹר יְשַׁלֵּם כֶּסֶף יָשִׁיב לִבְעָלָיו וְהַמֵּת יִהְיֶה-לּוֹ
“If a man uncovers a pit or if a man digs a pit and he does not cover it and an ox or a donkey falls into it, the owner of the pit shall pay, he shall return money to its owner and the carcass will belong to him.”

An ox that causes damage:
-וְכִי יִגֹּף שׁוֹר-אִישׁ אֶת-שׁוֹר רֵעֵהוּ וָמֵת וּמָכְרוּ אֶת-הַשּׁוֹר הַחַי וְחָצוּ אֶת-כַּסְפּוֹ וְגַם אֶת-הַמֵּת יֶחֱצוּן. אוֹ נוֹדַע כִּי שׁוֹר נַגָּח הוּא מִתְּמוֹל שִׁלְשֹׁם וְלֹא יִשְׁמְרֶנּוּ בְּעָלָיו שַׁלֵּם יְשַׁלֵּם שׁוֹר תַּחַת הַשּׁוֹר וְהַמֵּת יִהְיֶה-לּוֹ


Fire:
כי תצא אש ומצאה קוצים ונאכל גדיש או הקמה או השדה ... שלם ישלם המבעיר את הבערה
When fire goes out and find thorns and a wheat stack or standing corn or a field is consumed… the person who made the fire should pay for the damage.

What happens these mazikin cause damage together?

The Rambam, in Hilchos Chovel U’mazik (6:16) says:
אדם ושור שדחפו בהמה, או כלים, או אדם, או בהמת פסולי המוקדשין, לבור
; והוזק הנדחף בבור, או מת, או נשתברו הכלים: לעניין נזקי אדם או היזק בהמה--שלושתן חייבין, האדם הדוחף ובעל השור ובעל הבור; ומשלשין ביניהן

“A man and an ox that pushed an animal, or vessels or a person or פסולי המוקדשין into a pit and the thing that was pushed into the pit was damaged or died or the vessels were broken. With regards to the damage to the person or the animal, all three are chayav – the person who pushed in the thing and the owner of the pit and the owner of the ox, and they each pay one third of the damages.”

The Maggid Mishne points out that the Rambam does not differentiate between whether the person who pushed the thing into the bor was mazid or shoggeg. It seeems from this that according to the Rambam this is irrelevant, even if the person who pushed the other person into the pit did so intentionally, the ba’al ha’bor is still chayav to pay one third.

Tosafos however (Bava Kamma, 6a, dibbur hamaschil le’asuye), argues on the Rambam and is of the opinion that if the person pushed the animal or person into the bor intentionally then he is chayav and the ba’al habor is patur. However if the person pushed the person into the pit accidentally then all 3 pay.

Rb Pesach Stein asks on Tosafos, what difference does it make if the person who pushed the other person into the pit was shogeg or mazid? Either way he is chayav because of adam hamazik - האדם מועד לעולם, so the halacha should be the same?

He answers that even although in both cases the person who pushed the other person into the pit is chayav because of adam hamazik, nevertheless, in a case where he pushed the person into the pit deliberately he is more involved in the damage than in a case where he pushed in the person accidentally. A person whose property (ox, pit, fire) damages is liable to pay because his property caused the damage. However a person who caused damage personally has to pay because he himself caused the damage, he is more closely connected to and involved in the damage than a person whose property (ox, pit) damaged. Therefore he bears sole responsibility for the payment.

A moshol to this sevara can be found at the beginning of the third perek of Bava Kamma.
The halacha is that if someone leaves a barrel in the street and someone else comes and trips over it and breaks it, then the person who tripped is patur because ein darko shel odom le’hisbonen biderachim – it is not the way of people to look where they are going.

Nonetheless, we can ask that the person who tripped should be chayav because hadam muad le’olam? Who cares if people don’t look where they are going? Even if it is an accident he should still pay?

The answer is that an accident occurred here and we need to determine who is the cause of the accident. Because people don’t look where they are going, the person who placed the barrel in the street (the owner) is more a cause of the accident than the person who tripped and therefore he is responsible for the damage. The person who trips does not have to pay because he is not considered to be the cause of the damage.

So too in the case of a person falling into a pit. If the person who pushed the nizak did so deliberately, he is more connected to and a cause of the damage than the owner of the ox that assisted in pushing in the person or the owner of the pit. Therefore he alone has to pay.

Rabbi Pesach Stein futher asks as follows;
Tosafos proves that if the person who pushed the other person into the pit was deliberate that he is chayav from the fact that if someone burnt someone else’s tallis in a fire then the person who burnt the tallis is chayav, not the person who started the fire. So too in the case of the pit if the mazik was mazid then he alone is chayav. The Rambam agrees to the halacha of the tallis, so how does the Rambam answer tosafos’s question. What is the difference between burning a tallis, where the one who placed it in the fire is chayav, and pushing someone into a pit deliberately, where the one who pushed the person into the pit shares the payment of the damages with the owner of the pit and the owner of the ox that assisted in pushing?

Rabbi Pesach Stein answers that every type of mazik has its own particular shemira that has to be applied to it. A pit has to be covered so people cannot fall in, a fire has to be stopped from spreading so it does not burn things that it should not.

In the case of the fire, the fire did not spread! Someone else came and placed the tallis in it. Therefore regrading the tallis the owner of the fire was not negligent in its shemira. However in the case of the pit, the shemira required is to stop things falling into it. At the end of the day, for whatever reason, the person that was pushed fell into the bor. Had the bor been covered, he would not have been able to fall in. Therefore the owner of the pit shares in the damages.

It comes out that determining who has to pay in a case where multiple mazikin caused damage depends – according to Tosafos – on whether there was a person involved who performed the damage deliberately. In this case he has to pay the entire damage. According to the Rambam this is irrelevant and, other things being equal, even if there was a person involved who was deliberate he will only have to pay a share of the damage.

Also, when considering whether the owner of the thing that caused the damage - the ox, the fire or the pit – has to pay, we need to consider whether they gaurded their mazik appropriately with the shemira that it requires.

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