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August 30, 2014 / 4 Elul, 5774
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On A Fling

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The 11th grade boys were a rambunctious bunch. They were not violent, but boys will be boys, and part of “playing” involved occasional roughhousing.

Today was one of those days. Shimshon was standing in the hallway during recess, talking to a friend, when Dan walked over and jumped on him. After a brief struggle, Shimshon mustered his strength and flung Dan off of him. Dan reeled backward a few steps, off balance, and fell into a ceramic vase that was decorating the hall. The vase teetered; it finally fell with a loud thud and broke.

The noise attracted the attention of the teacher in an adjacent room who hurried out and restored order. The teacher then took the two boys to the principal’s office for a discussion. After addressing the issue of fighting, the principal pointed out that they broke the vase and would have to pay for it.

Shimshon was frustrated. “Why should I have to pay?” he asked the principal. “Dan broke the vase, not me. He fell on it.”

“What do you mean?” replied Dan. “You threw me into the vase. I was totally off balance and could not avoid it. You were the one who broke it!”

“Even so right, it’s still your fault,” argued Shimshon. “You started the fight. I was just protecting myself. It all happened because of you.”

“I’m not saying that the fight wasn’t my fault, but that’s a different issue,” Dan shot back. “As far as the vase – you threw me against it, so you are responsible for breaking it!”

They both looked at the principal, waiting for a resolution.

The principal leaned back in his chair. “Hmm, this is an interesting question,” he said. “You both have valid points, and I’m really not sure who is liable here. I’d like to consult Rabbi Dayan on this; I’ll arrange to meet him tomorrow evening.”

The following evening, the principal, Shimshon and Dan met with Rabbi Dayan. “Dan attacked Shimshon, who flung him back in defense, knocking over a ceramic vase,” said the principal. “Who is liable for the vase?”

“If Shimshon was aware he was flinging Dan into the vase, he alone is liable for the damage,” said Rabbi Dayan. “If he was not aware, though, my opinion – which is debatable – is that the two have to split the damage.”

“This ruling surprises me,” said Shimshon. “Why am I liable? Dan hit the vase and broke it, not me! We learned that a person is liable even for accidental damage.”

“It is true that a person who damages is liable, even if it was accidental and not in his control,” acknowledged Rabbi Dayan. “However, when you fling another person, the second person can be considered like an object in your hand, just as if you had flung a ball or board at the vase. Thus, the damage is primarily attributed to you, whose active force caused the damage, even though you didn’t make the physical contact with the chair.” (See C.M. 378:1; Chiddushei HaGrach, Hil. Yesodei HaTorah 5:1, s.v. veyesh lomar.)

“Then why do I have to pay half if Shimshon was unaware that he was flinging me into the chair?” asked Dan.

“This rationale is most compelling had Shimshon thrown you intentionally or if you were completely not at fault,” explained Rabbi Dayan. “Then you can be considered merely a ‘tool’ or object. However, when Shimshon was unaware of the vase, though he played a prominent role in the damage, you are not completely a ‘tool’ in his hand. Moreover, since you began the fight, you were flung by a force that came about through your negligence. This is somewhat similar to a person who stood carelessly at the edge of a roof and was flung off by the wind, who is liable. Therefore, both of you are parties in the damage and have to share the liability.” (See C.M. 378:1-2; 410:34; Pischei Choshen, Nezikin 7:33)

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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