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September 4, 2015 / 20 Elul, 5775
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Exercise Caution

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The bell rang for afternoon break in Mishpat Emes High School. The boys, who had been learning intensely all morning, headed out to the schoolyard for a half-hour break to get some fresh air and stretch their muscles with physical activity.

A few groups formed to play four-on-four half-court basketball games. Some boys jogged around the edges of the yard. Others pulled out mitts and tossed baseballs to each other. And some just stood around talking, enjoying the sunshine and crisp autumn air.

Gabi and Sruli were engrossed in their basketball game. Gabi passed the ball to Sruli but overshot him. At the same time, Eli, who was jogging around the court, darted behind Sruli with a phone in his hand. The ball flew past Sruli and hit Eli, knocking the phone out of his hand. It fell to the ground with a thud. Eli picked it up and saw that the screen had cracked.

“Look what you did!” Eli screamed at Gabi. “You broke my phone!”

“It’s your fault!” Gabi screamed back. “Why did you run there? Didn’t you see that we were playing ball here?”

“Even if you’re playing, you’ve got to be careful not to damage,” said Eli.

The following day, Eli walked in to school. “I took the phone to the repair store,” he said to Gabi. “It will cost 100 dollars to fix the screen. I expect you to cover the repair.”

“I didn’t mean to break the phone; it’s not my responsibility,” said Gabi. “We were just playing basketball, as we always do. The ball went a little off; it was an accident.”

“You don’t think you owe me?” asked Eli, incredulously.

“No,” replied Gabi flatly. “You should have been careful where you ran. You saw that we were playing ball. Balls always get tossed around.”

“Then we’ll have to take it up with Rabbi Dayan,” said Eli curtly. “OK with you?”

“Sure,” said Gabi. “Whatever he says.”

The two boys went to Rabbi Dayan’s office.

“Gabi broke my phone,” said Eli. “I want him to pay for the repair!”

“It’s not my fault,” objected Gabi.

“Let’s hear the story from the beginning, with the relevant details,” Rabb Dayan calmed them. Eli related what happened, with Gabi adding his perspective. “Does Gabi have to pay for the phone?” Eli asked.

“If Eli was standing on the side, even though Gabi damaged it unintentionally, he would be liable for the damage to the phone,” answered Rabbi Dayan. “However, if the boys were already playing in the area and Eli darted into their midst, Gabi would be exempt.”

“Isn’t there any consideration for accidents?” asked Eli.

“There is a clear rule in the Mishnah [B.K. 26a] that a person is liable even for accidental damage,” replied Rabbi Dayan. “Admittedly, some authorities curtail this rule and do not apply it to unusual or freak accidents. However, this limitation is not relevant here, since throwing a ball is certainly liable to cause damage.” (C.M. 378:1-3)

“Why, then, is Gabi exempt if I darted into the midst?” asked Eli.

“In this case, since you were aware that the boys were playing ball in the area and ran there, you brought the damage on yourself and Gabi had no way of preventing it,” explained Rabbi Dayan. “The Talmud Yerushalmi [B.K. 2:8] makes a similar distinction regarding a person who damaged or injured during his sleep.”

“Interesting,” commented Gabi. “In what way?”

“If a person went to sleep with another person or items near him, he is liable if he damaged, since he should have considered that he might roll over in his sleep,” explained Rabbi Dayan. “However, if the person went to sleep and afterward someone lay down or put items on the bed near him, the first person is exempt. The other person created the problem, whereas the one who went to sleep had no way to prevent this.” (C.M. 421:4; Pischei Choshen, Nezikin 1:7)

“I would add, though,” concluded Rabbi Dayan, “that if the boys were playing in an area where they had no right to be playing, such as in the hallway, and then Eli came, Gabi would still be liable. Since he had a right to walk there and they were the ones who were acting improperly, they have the greater responsibility to exercise caution.” (C.M. 378:7-8)

About the Author: Rabbi Meir Orlian is a faculty member of the Business Halacha Institute, headed by HaRav Chaim Kohn, a noted dayan. To receive BHI’s free newsletter, Business Weekly, send an e-mail to subscribe@businesshalacha.com. For questions regarding business halacha issues, or to bring a BHI lecturer to your business or shul, call the confidential hotline at 877-845-8455 or e-mail ask@businesshalacha.com.


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