Hilchot Nizkei Mamon - Chapter 13

Similarly, as stated in the following halachah, the owner of the cistern is not held liable if the utensils are damaged. With regard to a human, by contrast, the owner is liable for damages. (See Chapter 12, Halachah 16; Shulchan Aruch, Choshen Mishpat 410:21.)

See Bava Kama 28b, 53b.

See Chapter 12, Halachah 16.

See the Tur (Choshen A1ishpat 410), which defines the derivatives of a cistern as including “any property that causes damage in its place, which does not move.” Although the Rambam mentions “a moving obstacle” in Chapter 2, Halachah 19, the intent is that the obstacle is being moved by another force.

The person stumbled on the earth, and this is what caused the injury. Nevertheless, since the earth is ownerless, he collects the damages from the person who left the obstacle in its place. Were it not for the obstacle, the damage would not have taken place.

If, however, he left a jug on his own property and then declared it ownerless, he is not liable. At the outset, he had permission to leave the jug there. See Chapter 12, Halachah 2.

I.e. a place in front of oil vats or beehives, where jugs of oil or honey would be filled.

Although, as stated above, it is not the general practice for people to watch for obstacles as they walk, since jugs are often left on the ground in places like these, a passerby should watch his step (Kessef Mishneh).

In the dark, the owner of the jugs should have removed them before nightfall, for he knows that a passerby will not be able to see. If he filled the path with jugs, he made it likely that a person would break a jug as he passed by.
Note the quotation of this law in the Shulchan Aruch (Choshen Mishpat 412:2). There a further category is added: an instance where a person places so many jugs in the road that it is impossible for people to pass without breaking some of the jugs: the passerby is not liable even if he intentionally broke enough jugs to allow him to pass.

Since the jug broke accidentally, the owner is not considered negligent with regard to the damages that were caused. For this reason, the laws stated in Halachah 5 are not applied to him.

If he did not have time to gather the shards before the other person was injured, he does not have such a moral obligation (Shulchan Aruch, Choshen Mishpat 412:4.)

For the camel, like the broken pitcher, fell accidentally as the pitcher broke, and is thus considered to be an obstacle unintentionally placed in the public domain. Bava Kama 29a states that this is speaking of an instance where the camel died, and its owner rescinded his ownership over its carcass. Otherwise, he would be held liable.

Halachah 1.

I.e., his body is considered like an obstacle in the public domain.

Although one might think that he could have been held liable for not warning his colleague, this presumption is not accepted. His concern for his own welfare takes priority. Rabbenu Asher (and his opinion is accepted by the Tur and the Ramah [Choshen Mishpat 413:1]) differs and maintains that if the first potter had the opportunity to warn the second and failed to do so, he is liable.

Halachah 2. Implied by the Rambam’s wording in this halachah (and the following one) is that the body of the first potter is considered to be an obstacle. He is not considered to have caused damage to his colleague with his person.

This reflects the concept mentioned in the previous note. A person’s body is considered to be an obstacle. Therefore, the Rambam mentions damage to the body of the second person, implying that if the second person’s utensils were damaged, the first would not be held liable.

From Halachah 7, it would appear that this ruling applies only when the potter did not declare his wares ownerless. See the Ra’avad, the Maggid Mishneh, the Tur and the Ramah (Choshen Mishpat 413:2).

This argument does not apply, however, with regard to injury caused by the body of the second person. Since he had time to rise, he is liable for the injuries suffered.

In this instance, there is no difference whether or not the person declared the water ownerless, as reflected in Halachot 2 and 7.

For the owner of a derivative of a cistern is not liable for damages to property (Halachot 1 and 2).

The Ra’avad explains that this ruling applies only when the ground is still muddy because of the water. The Maggid Mishneh states that even when the water has been absorbed totally, if the ground is still slippery, the person is liable. The Shulchan Aruch (Choshen Mishpat 412:5) appears to follow the Ra’avad’s view.

Although the ground did not belong to him, since the fall was caused by the water that he poured, he is liable.

During these months, the streets are clean and it is forbidden for someone to soil them. Moreover, in Eretz Yisrael it does no train during these months, and the sewage will remain in the streets for months.

For the streets are muddy at that time, and there is water flowing to wash away the sewage. Needless to say, as our sewage and sidewalk shave become more sophisticated, the relevance of these laws has faded.

Although our Sages granted a person permission to release his sewage at this time, they did not absolve him of responsibility.

There is an unresolved difference of opinion among the Sages (Bava Kama 30b) if the penalty takes effect from the time the straw was taken out, or from the time it became useful as fertilizer.
Note the Tur and the Ramah (Choshen Mishpat 414:1), who state that at the outset a person who asks whether he may take the straw and the hay, should not be told that he may retain possession of its initial value. Instead, he should be told that he may keep only the increment. After the fact, he is allowed to keep the initial value as well.

The Tur and the Ramah differ with regard to this point as well and maintain that in this instance, the straw should be expropriated from the person who took possession of it.

Whenever damage is caused by an object that was declared ownerless after being placed in the public domain without permission, the person who placed it there is liable.

As stated in Hilchot Gezelah 6:5, this applies even if a person takes his compost out at a time when it is forbidden to do so. A person who takes it is liable for theft.

The Tur and the Ramah (Choshen Mishpat 414:2) state that if the compost causes damage, it is considered to be ownerless, and it may be taken by another person.

For these will remain in the public domain for an extended period.

To be used for building in the near future.

In this instance as well, the license to perform an activity in the public domain does not absolve a person of liability.

To transport to a construction site.

To carry it to the builder.

If they were partners, once the task is completed they all share in the responsibility. Until the entire task is completed, however, the person who is responsible for the activity at the time the damage was caused must pay for the damages, even when they were all partners.

I.e., each person is liable for the portion of the task that he performs.

The Maggid Mishneh emphasizes that this applies when damage is caused by the tree or the wall as it falls. After it falls and the tree or the stones are lying in the public domain, the owner is not liable, if he declares them ownerless.

This is considered an oness, a loss due to forces beyond his control. The Maggid Mishneh clarifies that this applies only when the wall was constructed properly to begin with. When, however, it is built faultily, the owner is liable.

Generally, despite the fact that a person declares an obstacle that he created in the public domain as ownerless, he is liable. In this instance, however, since he had permission to plant the tree or build the wall, and it fell because of forces beyond his control, he is not held responsible.
The Maggid Mishneh explains that the owner is liable, if he desires to establish his possession over the entities which fell. The Tur and the Ramah (loc. cit.) differ.

As Bava Metzia 118a states, this is the ordinary time granted by the court to adjust difficulties.

The thorns or glass that projects is considered to be an obstacle placed in the public domain.

Even if they project beyond the wall itself, as long as they are contained within the owner’s property, he is not liable.

And thus one could assume that it would be torn down in the near future.

The owner of the thorns or glass is not liable, because he had no reason to think that someone would tear down a sturdy wall. If the damage was done when the wall was being destroyed, the owner of the wall is liable, because he should have taken care that no passersby were hurt. If the damage was done after the wall was destroyed, the owner of the wall is liable, because he was responsible for clearing the debris remaining from his wall (Tur, Beit Yosef, Choshen Mishpat 415).

I.e., men who went beyond the measure of the law. This teaching is based on the examples of sages cited by Bava Kama 30a.

Lest another person stumble over them and be injured.

The Ramah (Choshen Mishpat 417:1) states that in his era, it had already become customary to dig below the streets of the public domain. This is surely the case in our age, when engineering has progressed to the point that safety is not compromised by digging in this manner.

E. g., to provide travelers with drinking water.
This law is stated in a separate paragraph, because as is stated in the Tur and the Shulchan Aruch (Choshen Mishpat 410:7, but see 417:1), it is a separate clause, and not a continuation of the previous idea. The Tur and the Shulchan Aruch also mention that the person must cover the cistern and entrust the cover to the trustees of the people at large, or at the very least inform the court that he has dug a cistern for people, but is expecting the court to arrange for its being covered.

A camel was the highest popular means of conveyance in Talmudic times. Needless to say, in every era, the height should be adjusted to fit the highest contemporary means of conveyance, e.g., in the present era, allowances should be made for semi-trailers.

I.e., knock down the existing walls and build new walls further removed from the public domain.

If, however, people do not frequently walk through this space (e.g., the person prevented that by building a platform there), he may rebuild the walls in their original place when he desires [Rabbenu Yerucham; Beit Yosef, Ramah (Choshen Mishpat 417:2)].

I.e., that the person who originally constructed the building built its walls removed from the public domain, so that the protrusions and balconies were permitted.

I.e., the rivers of Eretz Yisrael and Babylon were for the most part neither wide nor deep. When a ship wanted to dock, several of its crewmen would descend and they would pull the ship to the riverbank by ropes. This halachah requires that enough empty space be left along the river banks to allow these crewmen to maneuver. From Hilchot Geneivah 8:2, it appears that we are speaking about four cubits.

This can be derived by the conduct of Rabbah bar Rav Nachman (Bava Metzia 108a), who cleared space without informing the owner of the property.

See Halachah 24.

This is derived from the width of the public thoroughfare in the camp of the Jews in the desert.