Responsibility for Damage

Bava Kama (1:2) | Yisrael Bankier | 3 months ago

This week we start Masechet Bava Kama, which opens by discussing the obligation to pay for damages caused by one property. The second Mishnah shares the principle that kol she'chvati be shemirato, hichsharti et nizko. We shall try to understand this principle.

The Achronim probe the basis of this obligation. There are two possibilities. The first is that the obligation stems from the fact that one neglected to prevent the damage caused. In other words, it is because of the lack of shemira that the Torah obligated one to pay. The owner did not directly cause any damage. Nevertheless, since he did not guard his property, the Torah obligated him to pay. Alternatively, one is obligated to pay because when one's property caused damage, it is as if the owner directly caused the damage. If however he adequately guarding his property and it nevertheless was able to cause damage, the Torah exempted him in that situation. That is because it would be considered like ones (beyond one's control) if damage occurred despite proper shemira.

The Ayelet HaShachar (2a) points to Rashi on our Mishnah. Rashi brings two different explanations. He first explains that anything that I am obligated to guard, if it caused damage then I enabled (hichsharti) that damage since I did not guard the animal adequately. The second explanation is that "hichsharti et nizko" means that I am responsible to repair -- lehachshir -- (or pay for) that damage.

The Ayelet HaShachar explains that the second explanation can be understood according to either understanding. Once damage has been caused, the owner is responsible to pay. That could either be because of the obligation to pay due to neglect in shemira or because it is considered as if he caused the damaged. The first explanation in Rashi however can only be understood according to one of the understandings. According to the understanding that one is responsible because they neglected in their responsibility to watch over their property, the explanation that I therefore "enabled" the damage makes sense. If however, the starting point is that when one's property causes damage it is as if the owner did the damage (and it is only adequate shemira that would exempt him) then the "enabling" is not relevant.

When the Rambam begins Nizkei Mamon (1:1) he rules that, "any animal that belongs to a person and causes damage, the owner is obligated to pay, because his property caused damaged..." Note that the Rambam does not mention neglect in shemira. The Even HaAzel therefore explains that the base obligation is because his property caused damaged. This aligns with the second understanding, that when one's property causes damage, it is as if he caused damage, and not because he neglected in his shemira responsibility.

The Even HaAzel does note that the responsibility of a shomer is learnt from the pasuk "ve'lo ishmerono baalav". This would not present a problem for the Rambam because the pasuk does not necessary mean that what obligates a person is neglect in shemira. According to this understanding, the pasuk is simply teaching that the shomer takes the place of the owner, such that it is as if his property caused damage, which thereby generates the obligation for compensation.

While the Shulchan Aruch (389) uses that same language as the Rambam, the Tur however writes as follows "just as it is forbidden for one to cause damages to his friend, and if he did is obligated to pay, so too does one need guard the property from causing damage, and if it does cause damage his obligated to pay". We see that according to the Tur the obligation to guard one's property is the focus and the neglecting to do so is what obligates one to pay. It would therefore seem that the Tur aligns with the first understanding.

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