Ask the Rabbi

  • Family and Society
  • Damage and Theft
קטגוריה משנית
I have a question that I’ve been having a difficulty trying to find an answer to. I had a Halacha question. Last week in gym class we were playing a game in which we had to get to the ball first. A friend and I were both running towards the ball. As we are running I pushed him and his phone fell out of his pocket and broke. Who needs to pay? And if I need to pay, what do I need to pay for? I said I don’t need to pay because he put his phone in a dangerous situation. It was in a shallow pocket in gym and he was running so he should accept if his phone fell. I had my phone in my pocket but when he pushed me it didn’t fall out. I also don’t think it is entirely my fault as it was both our actions mixed together that made the phone fall. If I had pushed him when he was standing still, or if his phone was in a secure pocket (like mine was when he pushed me back and It didn’t fall) then my push wouldn’t have broken his phone. He says I need to pay because since there wasn’t supposed to be any pushing he was not prepared for it and shouldn’t need to be. And I should have taken responsibility that if I push him I face whatever the consequences of it will be. We understand we should both go to a Dayan but we also want opinions from other rabbis. What is your opinion who needs to pay? Thanks
This “other rabbi’s” opinion is that the only way to go about it, is to go together to your local rabbinical judge (Dayan). He will be able to question you on all the details, understand the facts clearly and decide who is responsible. With that being said; I’ll share with you some of the issues to be discussed in this case as you presented it, for the sake of learning. 1. The cardinal rule regarding monetary issues is “Hamotzi Mechavero Alav Haraayah”. “The burden of proof rests upon the one who demands the money” (Bava Kamma 46a. Shulchan Aruch Choshen Mishpat 399, 2-3. & 400, 1). Therefore your friend will have to prove that your push is what broke his phone. 2. Man is always Mu’ad (“forewarned”) whether he acts inadvertently or willfully, whether awake or asleep. If he blinded his neighbor’s eye or broke his articles, full compensation must therefore be made. The liability is even for accidents, excluding completely unavoidable accidents (Bava Kamma 26a. Shulchan Aruch Choshen Mishpat 378, 1. & 421, 3-4). 3. The Rabbinical Judge will try to find out whether your push which caused the damage is considered Halachicly as a Mazik B'yadayim – direct damage, or indirect damage such as “Koach Kocho”, Garmi, or Grama (Shulchan Aruch Choshen Mishpat 384 & 386). 4. Your case sounds identical to the case mentioned in the Gemara (Bava Kamma 48b) and ruled in Halacha (Shulchan Aruch Choshen Mishpat 378, 7.) where two people running in public domain, if they were indirectly damaged one from the other, they are exempt from paying for the damage. But if they damaged each other directly, they are liable to pay. You had mentioned that you pushed him while running, this sounds like a direct damage were one is liable. (See also Sema on Shulchan Aruch Choshen Mishpat 421, 10). 5. Even if you are liable to pay, you are liable to pay only what you damaged. Which means paying the cost of the repair, and if repair is not possible, you must pay the cost of a second-hand phone, not of a new phone (Shulchan Aruch Choshen Mishpat 387 & 403, 1).
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