Question: Is a person liable for damage that resulted from a complete accident?
Short Answer: There is a dispute whether one is liable for damage stemming from “oneis gamur.” We pasken that one is not liable.
Explanation:
I. The Source
The Mishnah (Bava Kama 26a) writes that a person is always a “muad” and thus liable to pay full damages if he damages. He is liable whether he damages “b’shogeig” (accidentally) or “b’meizid” (on purpose), and whether he damages while awake or during his sleep.
The Gemara (Bava Kama 26b) provides a source that a person is liable even for accidental damages, from the extra pasuk “petza tachas patza.” The Gemara explains that this pasuk teaches that a person is even liable for damages stemming from a tort committed under “oneis” (loosely translated as “duress” or “forced”).
The Gemara is unclear, however, whether “oneis” includes even “oneis gamur” – complete duress – or is limited to cases of oneis that are not fully under duress.
II. Tosafos’ Opinion
The Mishnah (Bava Kama 27a) states that if someone leaves a barrel in reshus harabim and a second person smashes it, the second person is not liable for damages. The Gemara (Bava Kama 27b), according to Shmuel, explains why the second person is not liable; shouldn’t he have looked where he was going? Shmuel answers that we are dealing with a case when the second person was walking on the road at night, so there was no way for him to see the barrel and avoid smashing it.
Tosafos (ibid) asks how this Gemara fits with the Gemara (cited above) that holds that one is liable even for damages stemming from oneis. Tosafos answers that a person is not liable for “oneis gamur” – damages done that are completely not his fault and only done out of complete “duress” (oneis). Tosafos proves this idea from the Yerushalmi, which holds that a sleeping person is not liable for damages done to a second person who went to sleep next to the first person after the first person was already asleep. This is oneis gamur.
Tosafos goes on to clarify that one is only liable for oneis that is akin to negligence, as by an aveidah (when someone loses something), but not for oneis that is akin to g’neivah (when something is stolen). Thus, if one damages by falling off a roof in an unusual wind, he is liable, as this is akin to aveidah and partially negligent.
III. Ramban’s Opinion
The Ramban (Bava M’tzia 82b), on the other hand, understands that there is no difference between oneis and oneis gamur – a tortfeasor is liable for both. Indeed, even if the wind is as uncommon as the winds by Eliyahu HaNavi, one is liable for damage stemming from that wind.
The Ramban explains that the Yerushalmi, if anything, supports his view. The Yerushalmi only holds that the first sleeping person is not liable because the second person “caused” the damage by coming near him. If not for this fact, the first person would be liable, even though it is oneis gamur.
[As an aside, Tosafos (Bava Kama 4a) likewise explains the Yerushalmi in this manner, seemingly contradicting his ruling mentioned above. For further discussion of this contradiction, see article by Rav Shmuel Kamenetsky shlita in the Dover Meisharim Journal (p. 382)].
Thus, there is a machlokes between Tosafos and the Ramban whether a person is liable for damage in a situation of oneis gamur: Tosafos holds that he is not liable, but the Ramban holds that he is liable. Interestingly, the Kuntresei Shiurim (Bava Kama) explains that they disagree how to understand the pasuk of petza tachas patza – does it rid the entire field of N’zikin of the p’tur of oneis Rachamana patrei (Ramban) or just set the bar higher (Tosafos).
IV. What Does the Rambam Hold?
The Rambam’s opinion about oneis gamur is unclear. The Rambam (Hilchos Choveil U’Mazik 6:1) codifies the general rule that a person is liable for all damages, regardless of whether he is oneis. The Maggid Mishneh (ibid) comments that oneis gamur is patur (like Tosafos), but notes that the Rambam is “lo chileik” – does not make a distinction between oneis and oneis gamur, thereby implying that he holds like the Ramban, that one is liable for oneis gamur as well.
However, the Kesef Mishneh wonders how the Maggid Mishneh could interpret the Rambam in this manner. The Maggid Mishneh himself – in halachah 4 – notes that the Rambam holds that one is not liable for oneis gamur, as he rules that one is not liable for damage caused when a ladder rung breaks where the break was unnoticeable. Thus, the Kesef Mishneh understands that the Rambam holds like Tosafos, that one is not liable for oneis gamur. The sefer Klalei Hilchos N’zikin (p. 4) cites the Drishah who notes that others have a different girsa in the Maggid Mishneh – that the Maggid Mishneh writes “lo choleik,” that even the Rambam agrees that one is not liable for oneis gamur, like Tosafos.
The Rambam (Hilchos Choveil U’Mazik 1:11) adds confusion, as the Rambam codifies the Yerushalmi’s sleeping case but gives the reason of the Ramban, that the first sleeper is not liable only because the second sleeper caused the damage. This implies that the Rambam holds like the Ramban that one is liable for oneis gamur.
V. The P’sak
The Shulchan Aruch (Choshen Mishpat 378:1) codifies these halachos but does not distinguish between oneis and oneis gamur. This is the opinion of the Ramban. The Rama, on the other hand, adds that there is a distinction between oneis and oneis gamur, like the opinion of Tosafos. The Shach (2) defends the Shulchan Aruch, citing the Maggid Mishneh, who also ruled like the Ramban.
However, as mentioned above, the Kesef Mishneh himself distinguished between oneis and oneis gamur.
VI. Practical Applications
Gam Ani Odecha (Orchosecha Lamdeini 46) finds that a student who breaks his chair by moving it carefully into the table is not liable for damages, as we pasken that one is not liable for oneis gamur.
Similarly, the Dibros Eliyahu (7:140) finds that a person who hangs out his dirty laundry on an attic porch at a time that he assumes the lower-level resident is not hanging out his own clothes, but the attic laundry damages the lower level’s clothes, the attic guy is not liable. The ruling is based on oneis gamur not being liable according to the Shulchan Aruch/Rama.
The Mishpetei HaTorah (1:3) likewise cites the law that one is not liable for oneis gamur to hold that a guest who accidentally throws out a cup of his host, which has a diamond in it, is not liable. But see Mishneh Halachos (10:298) for the opposite ruling by contact lenses.
The Avnei Derech (7:194) cites numerous Acharonim, including the Mishnas Yosef, who discuss a case where a person was taking out his garbage from his apartment and kindly took his neighbor’s garbage (from outside the neighbor’s door), as well. It turned out that the neighbor’s bag was actually not garbage but silver that he had removed from his table when cleaning it. The poskim ruled that the garbage taker is not liable, as it is oneis gamur.
The Chashukei Chemed (K’subos 30b) has an interesting limitation on the ruling of the Shulchan Aruch/Rama. Where the tortfeasor violates an aveirah, such as holding a rock on Shabbos, and the aveirah (here, the rock) accidentally damages via oneis gamur, the tortfeasor is still liable for damages.
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..
