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. If you missed last week’s essay, it is available at
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
Lelam,” 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
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.
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.