Question: Does one violate a prohibition when damaging another’s property?
Short Answer: Yes, a tortfeasor violates a prohibition when damaging another’s property. The precise prohibition, however, is subject to a dispute amongst the poskim.
Explanation:
I. The Source
The Mishnah (Bava Kama 26a) writes that a person is always liable if he damages another person or his property, regardless of whether the damage is done on purpose or by accident. The trickier question is whether the person violates a prohibition when damaging another’s property. In other words, even if the tortfeasor (the one who causes damages) pays for the damage, does he separately violate an aveirah for causing the damage in the first place?
The Gemara (Bava Kama 30a) states that if someone desires to become a chasid, he should strive to fulfill “N’zikin.” The Nimukei Yosef (cited in Darchei Moshe, Choshen Mishpat 378:1) explains that “N’zikin” means all topics mentioned in the three “bavas” (Bava Kama, Bava M’tzia, Bava Basra), including damages, theft, returning lost objects, etc. Clearly, it is noble to avoid damaging another’s property.
But is it forbidden? And if yes, what is the prohibition?
II. Tur – Stealing
The Tur (Choshen Mishpat 378:1) holds that it is forbidden to cause damage to another’s property. Just as it is forbidden to steal from your friend, it is likewise forbidden to damage him. The Pischei Choshen (N’zikin, 1:1, n. 1) notes that this is the opinion of Rabbeinu Yonah (beginning of Avos) as well, that the prohibition to damage stems from the prohibition to steal. Indeed, the Pischei Choshen cites the Levush who elaborates on this idea: Since you are obligated to pay damages to the victim of your tort, similar to having to pay the victim of your theft, it must be forbidden to damage, just as it is forbidden to steal. The Levush therefore refers to this prohibition as an isur d’Oraisa.
The Shulchan Aruch (Orach Chayim 378:1) follows the Tur that it is prohibited to damage the property of another but does not codify the connection to theft. The Shulchan Aruch leaves open the possibility that there are other reasons for this prohibition.
III. Other Opinions
The Levush (cited in Pischei Choshen, ibid) adds another source for why it is forbidden to damage another’s property – from Bal Tash’chis. Since the Torah forbids a person from destroying and damaging his own items, certainly he is forbidden to destroy other people’s property.
The Sefer HaChinuch (Mitzvah 243) writes that the mitzvah of V’ahavta l’rei’acha kamocha includes having mercy on your friend’s money, such as not damaging it. This implies that the prohibition stems from V’ahavta l’rei’acha kamocha. Indeed, the Yad Ramah (Bava Basra 26a) explains that the Gemara’s (Bava Basra 22b) assumption that “grama” (indirect damage) is forbidden is sourced on this pasuk of V’ahavta l’rei’acha kamocha (or the pasuk of lifnei iveir). See Pischei Choshen (ibid, n. 2).
The Kometz Minchah (Minchas Chinuch, Mitzvah 11) states that the source for the prohibition to damage another’s property stems from the mitzvah of hashavas aveidah, to return a lost object. Since you need to return a person’s lost object, certainly you must not destroy his objects.
IV. The Chasam Sofer
The Chasam Sofer (Yoreh Dei’ah 241) suggests a novel source for the prohibition. The Gemara (Bava Kama 2b) suggests a hava amina that the distinction between tam (paying half) and muad (paying full) by an ox that gores another’s ox is only with respect to a horn that is detached from the ox. Perhaps an ox that gores with an attached horn is always obligated to pay full damages.
The Rashba asks why the Gemara suggests a stringent hava amina: Shouldn’t the Gemara suggest that perhaps an ox that gores with an attached horn always only needs to pay half damages? Answers the Rashba, N’zikin is always “l’chumra” – assumed to be stringent when in doubt – because it is akin to isur, where we always assume l’chumra as well.
The Chasam Sofer was asked how we reconcile this idea of the Rashba with the general rule throughout Choshen Mishpat that the claimant needs to bring proof in order to be “motzi mamon” (collect) when the facts are in doubt. The Chasam Sofer answered that the prohibition of N’zikin is learned from “u’shmartem m’od l’nafshoseichem” and from “lo sa’amod al dam rei’echa” and therefore when interpreting p’sukim, we err on the side of caution and interpret strictly. However, with respect to later doubts as to facts of the case, we rule leniently.
The Chasam Sofer is clear that the source of the prohibition to carry out a tort is from “u’shmartem m’od l’nafshoseichem” and from “lo sa’amod al dam rei’echa.”
V. Ramifications
There are multiple halachic ramifications, depending on the source for the prohibition of damaging another’s property.
First is whether the prohibition is violated when the tortfeasor only damages less than a “shaveh p’rutah” (de minimis) or where there is only pain to the victim, but no monetary loss, as the tortfeasor damages with the intent to pay damages. Rav Nachum Rotstein (Nezer HaTorah Journal, Kislev 5769, p. 78) writes that if the prohibition is based on theft, then it is unclear whether a prohibition is violated, similar to theft, where there is a machlokes whether the prohibition is violated under such circumstances. However, if the prohibition is based on V’ahavta l’rei’acha, then it is violated even if the tortfeasor only damages a de minimis amount or intends to repay the damages. [This author is unsure whether “u’shmartem m’od l’nafshoseichem” and “hashavas aveidah” is violated in such a case, but presumably “Bal Tash’chis” is violated].
Second is whether the prohibition applies to indirectly damaging your friend’s property. Rav Nachum Rotstein (ibid) suggests that it is violated according to the source of V’ahavta l’rei’acha, but not according to the source of theft (which is not violated unless you do a direct act).
Third is whether the prohibition applies to damaging an akum. The sefer Binas HaMishpat (siman 109) suggests that according to the source of theft, surely the prohibition is violated to an akum. According to Bal Tash’chis, it is dependent on whether Bal Tash’chis applies by hefker. According to hashavas aveidah, it would not apply to an akum. Ditto for the reason of V’ahavta l’rei’acha and “u’shmartem m’od l’nafshoseichem.”
VI. Practical Application
The Pischei Choshen (ibid) notes that the prohibition not to damage another’s property applies even for small amounts of damage. A common case that people are not careful about, he suggests, is hanging up posters on other people’s property. These posters damage the wall and cause damage to the paint. It would therefore be forbidden to hang them up.
On the flip side, it is forbidden to tear down posters, he rules, where they are hung with permission. Doing so damages the business or person who hung up the poster. However, the Pischei Choshen holds that there obviously is a time limit to how long the person expects his posters to last, but that such a time limit is unclear.
Rabbi Ephraim Glatt, Esq. is the Associate Rabbi at the Young Israel of Kew Gardens Hills, and he is a Partner at McGrail & Bensinger LLP, specializing in commercial litigation. Questions? Comments? Email This email address is being protected from spambots. You need JavaScript enabled to view it..
