THE JERUSALEM INSTITUTE OF JEWISH LAW - Rabbi Emanuel Quint, Dean

Lesson # 307 (part four) •TORTS

We come to a topic discussed in the Talmud and frequently studied by students who are beginning the exciting, thrilling life’s adventure of studying Gemara (Talmud Baba Kama 31b).

In halacha, this chapter is known as “Pedestrians Carrying Wares Collide in the Street”.

This lesson is a continuation of the prior lessons dealing with torts, in that it discusses individuals, such as Reuven and Shimon, walking in a public place, such as a street, each one holding an object. They collide with one another and Shimon’s object is damaged. Is Reuven liable to compensate Shimon for thee damages?

Following the tradition of several millennia of halacha, Reuven is carrying a wooden beam in the street and Shimon is carrying a jug and walking alongside or toward Reuven. Somehow Reuven’s beam impacts on Shimon’s jug and the jug breaks. Reuven is not liable since both Reuven and Shimon have the right to walk in a public street. However, if Shimon stops walking and Reuven’s beam breaks the jug that Shimon is carrying, then Reuven is liable.

Assume that Reuven is walking in the street carrying his beam and Shimon walks behind him carrying a jug. Shimon walks into Reuven’s beam and the jug breaks, Reuven is not liable since Reuven has the same right to walk in the street as Shimon does. However if Reuven stops short to rest and gives no warning to those walking behind him, and then Shimon – not realizing that Reuven has stopped — walks into Reuven and breaks his jug, then Reuven is liable. Anyone carrying a beam in a public street should anticipate that there are others walking there and that if he stops suddenly others may bump into him. If Reuven signaled or gave warning that he was about to stop and Shimon walks into Reuven breaking his jug on Reuven’s beam, then Reuven is not liable. Similarly, if Reuven, instead of stopping to rest, merely pauses to shift the beam on his shoulders, and Shimon walks into him, Reuven is not liable. The theory is that Reuven is so preoccupied with shifting the heavy beam that he has no time to give warning or signal that he is stopping. It is difficult to prove whether Reuven stopped to rest or to shift the beam. The burden of proof would have to be on Shimon, since he is the plaintiff in suing Reuven for his jug and its contents.

Assume that Shimon is walking in the street carrying his jug and Reuven walks behind him carrying a beam. Reuven walks into Shimon’s jug and the jug breaks. Reuven is liable. Reuven is considered to be negligent that it is almost as if he intentionally broke Shimon’s jug. However, if Shimon stops short to rest and gives no warning or signal to those walking behind him, and then Reuven, not realizing that Shimon has stopped, walks into Shimon and Shimon’s jug breaks, then Reuven is not liable. Shimon is deemed to be contributory negligent. If Shimon signaled or gave warning that he was about to stop and Reuven walks into Shimon breaking the jug on Reuven’s beam, then Reuven is liable. Similarly if Shimon, instead of stopping to rest merely pauses to shift the jug on his shoulders and Reuven walks into Shimon, Reuven is liable. The theory of this last law is that Shimon is so preoccupied with shifting the jug that he has no time to give warning that he is stopping.

The halacha is similar in related cases, such as when Reuven is carrying a lighted torch and Shimon is carrying flax.

In Shulhan Aruch, the next chapter deals with damaging objects with the owner’s permission. Reuven is in possession of Shimon’s garment or jug. Shimon tells Reuven to tear Shimon’s garment or break his jug and if he does so he will be free of liability. Reuven does so; he is free of liability. There is a second opinion that holds Reuven free of liability even if Shimon did not tell him specifically that he would be free of liability if he accedes to the request to tear his garment but rather Shimon indicates as much. For example, Shimon asks Reuven to tear his garment and Reuven asks if he will be free of liability if he does so. Even if Shimon says “No”, it is assumed that Shimon is being sarcastic. In cases of doubt Reuven is free of liability to Shimon. Even in cases where Reuven is free of liability to Shimon, both of them are guilty of wasting assets.

However, if Shimon does not state that Reuven will be free of liability, or according to the second opinion of the prior paragraph, Shimon does not indicate as much, then if Reuven tears Shimon’s garment or breaks his jug, Reuven is liable even though Shimon has instructed him to be destructive. In this situation it is deemed that Shimon was joking when he told Reuven to destroy his object.

Assume that Reuven is not in possession of Shimon’s garment and Shimon hands Reuven the garment. Shimon then tells Reuven to tear the garment. Reuven is free of liability if he tears the garment though Shimon did not tell him he would be free of liability if he did so. Shimon tells Reuven to throw Reuven’s $100 note into the sea and that Shimon will reimburse him. There are opposing views as to whether Shimon must pay Reuven the $100. The opinion that Shimon is liable is based on the theory that Shimon is a guarantor similar to the situation in which Shimon tells Reuven to give Levi $10 and Shimon will reimburse Reuven. The opinion that holds that Shimon is not liable claims that a guarantor is liable only if someone obtains benefit from his guaranty, which is not the case here. If Shimon gives Reuven his money and tells him to throw it into the sea, and if Reuven does so, Reuven is free of liability to Shimon.

Shimon tells Reuven to break Levi’s vessel and Reuven will be free of liability; Reuven does so. Only Reuven must pay Levi for the damage that is caused; Shimon is free of liability to Levi. Even if Shimon told Reuven that he, Shimon, will be liable to Levi, Shimon is not liable since a person cannot be obligated by mere words to Reuven. Reuven was foolish for listening to Shimon. However, Shimon morally shares with Reuven in the wrongdoing and is an evildoer who has put a stumbling block in the path of his fellow man and encouraged lawbreaking. Furthermore, Reuven is also guilty of wasting an asset.

The subject matter of this lesson is more fully discussed in volume X chapter 379 and 380 of A Restatement of Rabbinic Civil Law by E. Quint. Copies of all volumes can be purchased via email: orders@gefenpublishing.com and via website: www.israelbooks.com and at local Judaica bookstores. Questions to quint@inter.net.il