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- Chemdat Yamim
- P'ninat Mishpat
The defendant (=def) needed to replace his water tank on the roof and asked permission from the plaintiff (=pl), who occupies the building’s top floor, to allow workers to go up and do so. Pl refused to give permission, stating that the roof was not strong enough to support the weight, despite def’s promise to pay if there were damages. Def had the work done anyway, and the workers indeed cracked the roof and left the roof with the work undone out of fear of collapse. Pl demands payment of damages and is unwilling to pursue the workers.
Ruling: At first glance, def should be exempt, as we do not find that when a shaliach (agent) causes damage that the one who sends him is obligated to pay. However, there are several grounds for obligating def, as we will present.
The Shita Mekubetzet (Bava Kama 98b) says that if a worker caused damage to passersby, the owner of the property is obligated to pay if the worker is paid according to the time he works. Some even say that only the owner, not the worker, is obligated. This may be, though, only due to the obligation to make sure one’s property does not cause damage, in which case it would not apply if the worker did the damage with his own body. Indeed Rashi (Bava Metzia 118b) says that if a worker drops something that damages immediately, he is responsible because it is seen as coming from his power, but after it fell, everyone who is connected to the matter could be obligated. However, according to some Rishonim, even when we can obligate the worker if he is paid by the job, the owner is obligated anyway, apparently because of a responsibility to see that no damage comes from the work he asked to be done.
This also seems analogous to the case of watchmen who accept to watch an object together, where we say that each one becomes a guarantor for the failure of the others (see Shach, CM 77:1). Even the Netivot Hamishpat (ad loc.), who says that a watchman who gives to a qualified watchman is exempt, should obligate here, because the workers are busy with their work and it is common for them to cause damage. Also, when the worker is paid according to the time he puts in, one can apply the opinion that when a secondary watchman does not have what to pay, the main watchman has to pay in his stead for shortcomings (see Tosafot, Bava Metzia 42b).
Another possible reason to obligate is based on garmi (semi-direct damage), as the Rama (CM 388:15) says that if someone sends an agent who has a track record of causing damage, the one who sent him is obligated through garmi. In this case, the fact that def knew, based on pl’s warning, which was proven true, that damage was likely, makes it considered a case where damage was to be assumed to be likely.
Def’s promise to be responsible, although not accepted by pl, still enabled def (from his own moral perspective) to allow the workers on the roof, and thus it should be binding. Only in a case where the one who promises to pay asked his agent to do something that is outright forbidden do we say that we do not to expect the agent to comply and exempt the one who asked him (see Taz, CM 380:2).
P'ninat Mishpat (832)
Various Rabbis
153 - A Benefit Provided Despite the Recipient’s Protest
154 - Damages Done by a Worker
155 - Rights for a Worker Who Agreed to Substandard Conditions
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P'ninat Mishpat P'ninat Mishpat: How Many Dayanim?
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