Question: Is a person liable for deleting files from another person’s computer?
Short Answer: Yes, even if done accidentally, this is not considered “hezeik she’eino nikar” and therefore the deleter is liable.
Explanation:
I. The Source
The Mishnah (Gittin 52b) writes that a person who is m’tamei (causes impurity) or “m’dameh” (causes an improper mixture of t’rumah/chullin) is liable only if he does the act on purpose. He is not liable if the act is done accidentally. [Note that the Mishnah likewise discusses a third case, “menaseich,” which is outside the scope of this article].
The Gemara (Gittin 53a) elaborates on the Mishnah. According to Chizkiyah, both accidental and intentional acts are liable d’Oraisa, as “hezeik she’eino nikar” (“HSN”) is “sh’mei hezeik.” In other words, “unrecognizable damage” is considered “damage” for purposes of liability. The only reason why one is not liable mi’d’Rabbanan for accidental acts of metamei/m’dameh is to encourage the wrongdoer to inform the owner that his object is now ruined (because otherwise the damage is unrecognizable). According to Rabbi Yochanan, both accidental and intentional acts are not liable d’Oraisa, as HSN is “lav sh’mei hezeik.” The only reason why d’Rabbanan we penalize a person who damages intentionally is to prevent wrongdoers from going around and ruining the food/objects of their enemies.
The Gemara (Gittin 53b) concludes that HSN is “lav sh’mei hezeik,” based on a baraisa that rules that a person who steals a coin and ruins it, or t’rumah and makes it tamei, or chametz and then Pesach comes, need only return the item as is, even though it is currently worthless.
The Shulchan Aruch (Choshen Mishpat 385:1) accordingly holds that one is not liable for HSM when done accidentally. If done intentionally, the Rabbanan instituted damage payments. [As an aside, see Mei’ein Omer (Vol. 10, p. 273) who notes that the Shulchan Aruch obviously paskens that we can collect this k’nas nowadays, as it is based on the actual amount of damages. This, however, is a machlokes Rishonim].
II. Scope
The Gemara (Gittin 52b-53a) likewise cites a machlokes between Rav and Shmuel whether we limit the rule of HSN to the three examples in the Mishnah (Shmuel) or whether it applies to other examples of HSN (Rav). This is based on whether we learn one k’nas (penalty) from another k’nas.
The Shach (Choshen Mishpat 385:1) notes that the language of the Rambam (Hilchos Choveil U’Mazik 7:1) and the Shulchan Aruch imply that we pasken like Rav, that HSN is not limited to any specific example. One is only liable for intentional HSN, regardless of the scenario. This is in contrast to the opinion of the Ramban and Rav Hai Gaon who rule like Shmuel, thereby limiting the HSN doctrine to the three examples in the Mishnah.
III. What Is HSN?
What makes something HSN?
Rashi (Gittin 53a, s.v. hezeik) writes that HSN is something that has not undergone a physical change despite the wrongdoing. Similarly, the Rambam (Hilchos Choveil U’Mazik 7:1) writes that HSN is something that has not had a change in the item despite the wrongdoing.
On the other hand, Tosafos (Bava Basra 2b) disagrees. The Gemara (ibid) discusses a case where a landowner has a vineyard, and his neighbor has a regular vegetable field close to the vineyard. The vineyard owner is responsible to rebuild the wall between them if it gets destroyed, as this wall is preventing the isur of kil’ayim. If he does not fix it, he is liable to his neighbor for causing the vegetable field to now be forbidden. Tosafos asks why the vineyard owner is liable; isn’t this HSN? Tosafos answers that here the hezeik is in fact nikar because any passerby will see the vineyard and understand that the vegetable field is forbidden. This is different from the case of m’tamei, as a passerby will not necessarily have seen the hechsher to the fruits enabling them to become tamei.
Tosafos clearly argues with Rashi and the Rambam. According to Tosafos, damage will be considered nikar (and thus the tortfeasor liable) even if there is no physical change in the damaged item, as long as the damage is evident to a passerby.
As an aside, see Kovetz Yesodos V’Chakiros, HSN, who cites two different explanations for this machlokes: (i) Rav Yosef Dov Soloveitchik understands that they argue whether the main aspect of an object is its form (Rashi/Rambam) or its worth (Tosafos); and (ii) Kuntresei Shiurim understands that they argue whether HSN is not liable because it is not “damage” (Rashi/Rambam) or because the tortfeasor is not a mazik (Tosafos).
IV. The Pischei T’shuvah
The Pischei Teshuvah (Choshen Mishpat 385:1) cites the Pri M’gadim who ruled that if a person accidentally drops isur into his friend’s food, he is not liable unless it is eino mino and the taste is noticeable (i.e., it then becomes hezeik nikar). The Minchas Shlomo (88:6) explains that since the taste is noticeable when it falls in, e.g., it is noticeable that the dairy spoon is mixing with the meat dish, even if it is not noticeable after it mixes, it is considered hezeik nikar according to Tosafos, and asur. According to Rambam/Rashi, however, it is HSN and the person is not liable when he mixes it accidentally.
V. Sterile Equipment
The Chashukei Chemed (Bava Kama 5a) suggests another application between Tosafos and the Rambam/Rashi. What is the law where a person opens up sealed sterile equipment, thereby rendering it contaminated?
According to Tosafos, the tortfeasor is liable, as it is evident to a passerby that an open sterilized item is no longer sterile. According to Rashi/Rambam, however, the tortfeasor is not liable, as there is no physical change to the object. The Chashukei Chemed, however, disagrees. Even the Rambam would find the tortfeasor liable here because there is a physical change, as there are now bacteria – visible via a microscope – on the equipment.
However, the sefer Menorah B’Darom (Vol. 10, p. 70) questions the ruling of the Chashukei Chemed, based on many Acharonim, including Rav Moshe Feinstein zt”l, who doubted the use of microscopes in determining isurim. Indeed, the Menorah B’Darom wonders whether someone is liable for causing another person to get sick by breathing germs on him, such as Covid.
VI. Digital Files
What about if a person accidentally erases or damages files on his friend’s computer: Is this HSN? The sefer Binas HaMishpat (337) writes that both according to Rashi/Rambam and according to Tosafos, such damage is hezeik nikar, as it is recognizable to any onlooker that the files are damaged. There is also a physical change – albeit digital – in the computer. See also Otzar HaIyun (p. 589) and Mishpetecha L’Yaakov (Vol. 9, siman 33).
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..
