The Case of the Flying CD
Player - Part 2 by Rabbi Chaim Jachter
Introduction Last week we began to discuss a
fascinating question that arose from a bizarre incident where a borrowed CD
player flew out of a car window and
was destroyed. This week, we shall present how this issue
was finally adjudicated by Rav Hershel Schachter.
Adam Hamazik The students (see Sanhedrin 32a,
where we see that the students are given a voice in Beit
Din hearings), however, stated that our case is not
analogous to the case that is discussed in Bava Kama 47,
where the ox of the property owner caused the damage. In
our case, the property owner himself (R) did the damage.
Thus, it is appropriate to investigate whether we should
view R as an Adam Hamazik (damager) to S's CD
player. The Mishnah (Bava Kama 26a) states that "Adam
Muad Leolam," a human being is always responsible for
the consequences of his actions. The Mishnah adds that
this applies whether the person acted deliberately
(Meizid) or negligently (Shogeg), and whether he is
awake or asleep. The Gemara (Sanhedrin 72a) adds that a
human being is responsible even if it is a situation of
Ones (accident). Tosafot (Yevamot 53b s.v. Haba) add
that some believe that one is responsible even if he was
coerced to cause damage. Accordingly, R should be
obligated to pay as an Adam Hamazik, who must compensate
the victim even if he caused damage
accidentally. This point, however, seems to hinge on
a dispute among the Rishonim regarding the scope of an
Adam Hamazik's obligation. Tosafot (Bava Kama 27b s.v.
Ushmuel) argue that an Adam HaMazik must pay only in an
ordinary case of Ones. However, if the damage was
completely beyond one's control (Ones Gamur), then even
an Adam Hamazik is exempt from payment. For example,
say Tosafot, one is obligated to pay if, while sleeping,
he damaged the person sleeping next to him. However, one
is excused if the person sleeping next to him lay down
after the damager fell asleep. As proof to their
assertion, Tosafot cite the Mishna (Bava Kama 31b-32a)
that excuses one who is holding a beam and damages the
barrel of one walking in front of him. He is excused if
the one holding the barrel stops suddenly without
warning, while the beam-holder continues and damages the
barrel. Tosafot even set a standard for Ones Gamur.
They write that if it is an Ones as severe as theft, one
is excused from paying for the damage that he caused.
Thus, an Adam Hamazik is responsible for his actions
only to the same extent as a Shomer Sachar (paid
watchman). The Ramban (Bava Metzia 82b s.v. Ve'ata
Rabi Yehuda) disagrees, ruling that an Adam Hamazik is
responsible even in a case of Ones Gamur. He cites a
proof from the fact that the Gemara (Bava Kama 27a)
obligates one to pay if he was pushed off a roof by an
unusually strong wind and damaged someone. The Ramban
writes that an Adam Hamazik is responsible no matter how
severe the Ones. The Maggid Mishneh (commenting to
Hilchot Chovel Umazik 6:1) and the Shach (C.M. 378:1)
argue that the Rambam (ad. loc.) agrees with the Ramban,
as the Rambam does not seem to distinguish between Ones
Gamur and Ones (see Kesef Mishnah ad. loc. who disagrees
and argues that the Rambam agrees with Tosafot). This
debate seems to continue with the Shulchan Aruch. The
Rama (C.M. 378:1) rules explicitly in accordance with
Tosafot. On the other hand, the Shach (ad. loc.) argues
that the Mechaber agrees with the Ramban as the Mechaber
does not explicitly distinguish between an Ones Gamur
and an ordinary Ones. The Taz (C.M. 378:2) asserts that
the Shulchan Aruch adopts a compromise position,
excusing an Adam Hamazik only in an extraordinary
situation of Ones. The Taz's example of an extraordinary
Ones is someone who ascends a roof that is encompassed
by a fence and is thrust by an unusually strong wind
over the fence and he falls and causes damage. The Aruch
Hashulchan (C.M. 378:8) rules in accordance with the
Taz. He notes (C.M. 378:1 and 378:9) that most Rishonim
agree with Tosafot, and that even Tosafot would agree
that if one intends to damage, he is responsible to pay
even in a case of Ones Gamur. Accordingly, in our case, we must determine whether R
is defined as an extreme Ones Gamur comparable to the case
of the Taz and the Aruch Hashulchan. There
was some debate among the Talmidim, and we decided that
the case should be referred to a Rav of eminent
stature for a decision. I called Rav Hershel Schachter, who
ruled that it was not a case of Ones
Gamur, and R was thus obligated to compensate
S for the damaged CD player.
Conclusion It is often quite difficult to
determine a proper ruling regarding a monetary dispute
(see Shulchan Aruch C.M. 12:20 and the comments of the
Vilna Gaon ad. loc.). However, when the Rav and the disputants are dedicated to finding a
truthful ruling, a fair judgment can be reached with the help
of Hashem.
