Often when playing sports players damage other player’s property such as eyeglasses or even bodily damage (broken bones etc.) The Mishnah (Bava Kama 26a) teaches that “adam muad l’olam, bein shogeig bein meizid”, a person is always liable for the damage he causes, whether they were done deliberately or even by mistake. Does this principle apply to nezek (damage) done while playing sports?
Oness – Tosafot vs. Ramban
The first question we must address is whether the Mishnah’s statement includes nezek done b’oness (circumstances beyond one’s control). This question is the subject of a celebrated debate between the Ramban and Tosafot. Tosafot (Bava Kama 27b s.v. U’Shmuel) believe that one is not obligated for nezek if done b’oness gamur, the situation was entirely beyond one’s control. They cite as proof the Talmud Yerushalmi which states that if one person went to sleep and a second individual subsequently lied down next to him and the first individual damaged the second while sleeping, the first individual is excused from payment.
The Ramban (Bava Metzia 82b s.v. ve’ata Rabi Yehudah) disagrees and rules that one is obligated to repay damage one causes even if the situation is totally beyond one’s control. Ramban argues that the case of the Talmud Yerushalmi differs because the second person acted irresponsibly by lying down next to a sleeping person. Thus the first person is not excused due to oness gamur. Rather, he is excused due to the poor choice made by the one who suffered the damage.
This dispute does not seem to resolve the issue in regards to sports. One the one hand, the damage is not done in a manner defined as oness gamur. One the other hand, the one who is damaged played a role in creating the damage by agreeing to play the game. We must look to another source to resolve our issue.
Tosafot – Jousting
The Mishnah (Sukkah 45a) states that on the last day of Sukkot, people in the Beit HaMikdash played a game in which they would grab lulavim from children. This is not considered theft since the children knew that people would play this game. This is comparable to “stealing” the basketball from one’s opponent. This is not considered theft since it is understood that this is how the game is played.
Tosafot (ad. loc. s.v. Mee’yad) write:
We may learn from this that those young people who ride horses towards a groom and they fight each other (i.e., jousting; recall that the Baalei HaTosafot lived during the Middle Ages) and in the process tear the other party’s clothes or damage the other party’s horse, that they are excused from damages since this is a common practice in order to enhance the rejoicing at a wedding party.
When one agrees to joust they understand the risks involved and thus implicitly is mocheil (waives the right to sue for) damages done to him. The Rama (C.M. 378:9) rules in accordance with Tosafot without any dissent from the commentators. One opinion cited by the Rama applies this principle even to damage done while celebrating on Purim (O.C. 695:2). We should note, though, that the Aruch Hashulchan (O.C. 695:10) records that the custom is no longer to celebrate so wildly to the extent that damage is an expected event.
The Magen Avraham (695:7) and Mishnah Berurah (695:14) exclude from this exemption, however, damage that was done deliberately. This is similar (l’havdil) to the policy of America’s National Basketball Association (NBA) which exempts damage done by players to each other in the normal course of play (including ordinary “fouls”, violation of basketball rules) but obligates a player to pay for damage done in the case of a “flagrant foul”, where it appears that he had deliberate intention to harm the other player.
Damage Done to Another’s Body – The Knesset Hagedolah vs. the Agudah
The Magen Avraham (ibid.) cites a difference of opinion between the Knesset Hagedolah and the Agudah as to whether Tosafot’s exemption applies even to damage done to the other person’s body. The reasoning for the Kenesset Hagedolah’s obligating one for such damage seems straightforward. The Mishnah (Bava Kama 92a) states
If one says to another ‘blind my eye’ ‘remove my arm’, ‘break my hand’ and the latter complies with the former’s request, he is responsible for the damage even if the victim stipulated in advance that the damager would be excused from compensating the other party. On the other hand, if one instructs another ‘tear my clothes’ or ‘break my jug’ and the latter complies, he must pay damages; however, he is excused if the former stipulated in advance that the latter would be exempt from the consequences of this action.
The reason for the Mishnah’s distinction between property and personal damage is straightforward. One owns his property but not his body. The body belongs to Hashem. Thus, one may be mocheil damage done to one’s property but not to one’s body. Accordingly, the Kenesset HaGedolah rules that one may be mocheil damage done to one’s property while playing sports but not to damage done to one’s body.
The Agudah’s ruling, on the other hand, is similar to a ruling of the Teshuvot Harosh cited by the Tur (C.M. 421; and codified in the Shulchan Aruch C.M. 421:5):
Two individuals wrestled together and one wrestled the other to the ground, fell on him and blinded the eye of the one beneath him in the course of falling on him. The wrestler is exempt from paying compensation since they consented to wrestle and the damager did not intend to injure the other. It is known that when two people wrestle each one’s primary objective is to bring his opponent to the ground. It is impossible for players to be precise and wrestle the other to the ground gently so as not to hurt his oponent, since they are playing with all their might and each one intends to wrestle the other to the ground. The players are Mocheil each other and it is with this mutual intention that they wrestle.
The Rosh is difficult to understand if one believes that one does not own his body and thus does not enjoy the right to waive claims against damage done to his body. Yakir Forman explains that the Rosh does not subscribe to this approach. Indeed, the Rosh (cited by the Tur, ibid.) states that if one explicitly excuses another from payment for damages the latter does to the former's body, the latter is not obligated to pay for such damages.163Although this opinion seems to contradict the aforementioned Mishnah (Bava Kama 92a), the Rosh explains that the Mishnah obligates the damager despite the damaged one's mechilah only in the following case: one says to another, 'blind my eye,' 'remove my eye,' or 'break my hand.' The latter asks if he will be exempt from damages upon doing so, and the former answers, 'yes.' In this case, since it is extremely unlikely that a person will allow damage to his or her body, we assume that the former's 'yes' was sarcastic and that he was not actually mocheil (on the other hand, if the two were discussing monetary damage, which a person is more likely to allow, we do not make this assumption). If, however, one specifically instructs another, “Blind my eye, and you will not be accountable for damages,” we cannot make this assumption, so the damager is not obligated to pay for damages. Thus, the Rosh presumably believes that the wrestlers' implicit mutual mechilah is analogous to explicit mechilah, since it is so clear that damage might occur during the match.
The Sema (421:10) provides another explanation of the Rosh’s ruling, in line with the view that one does not own his body. He explains “They were both equal participants in the damage”. In other words the exemption from compensation does not emerge merely from mechilah. It is also because the one who lost his eye was a willing participant in the damage he sustained. This is analogous to the aforementioned situation where one lies down next to one who sleeps and is damaged where even the Ramban exempts the one who did damage because of the victim's participation.
The dispute between the Kenesset Hagedolah and the Agudah remains unresolved. The Mishnah Berurah (695:13) rules that the exemption applies even to bodily damage (although he cites the Bach who writes that the custom is to be mocheil only small scale damage but not large scale damage) but the Aruch Hashulchan (O.C. 695:10) rules in accordance with the Knesset Hagedolah that one is obligated to pay for damage to the body (but does not cite the Bach’s distinction between small and large scale damage). Thus, a beit din would not obligate one to pay in such circumstances since the great principle regarding monetary disputes is hamotzi meichaveiro alav haRa’ayah, the burden of proof rests upon the one who seeks payment (Bava Kama 46a). However, a beit din may rule that some payment is required if the parties agreed to a pesharah (equity and compromise) ruling and if the beit din believes that the circumstances warrant some payment (see Aruch Hashulchan C.M. 378:21).
Fouls - Rav Dov Lior vs. Rav Mordechai Willig
Rav Dov Lior (Teshuvot Devar Chevron 101) records a situation that occurred while people were playing basketball in Kiryat Arba. One individual broke the other’s glasses while fouling the one wearing the glasses. Rav Lior, the Rav of Kiryat Arba who is renowned as a great expert in Halachah, ruled that the player must pay for the broken glasses. Rav Lior writes “one is mocheil only in regards when the other party conforms to the rules” but not when the other party fouls his opponent and does not abide by the rules of the game.
I related this ruling to Rav Mordechai Willig (who in addition to being an outstanding Torah scholar and halachic authority also occasionally plays basketball during the summers at the Camp Morasha Kollel) who reacted with shock to this ruling. Rav Willig remarked that Rav Lior obviously must have never played basketball. Anyone who plays basketball knows that fouling is part of the game and thus when one plays basketball he consents to being fouled. One may limit this, of course, to moderate or reasonable fouling and not to “flagrant fouls” to which there is no mechilah.
In addition, anyone who wears eyeglasses knows (or should know) that wearing ordinary glasses while playing basketball is foolish since they can easily break in the normal course of playing, even without fouling. One who wears glasses while playing basketball is similar to the one who sleeps next to another sleeping individual who in the words of the Ramban “Acted negligently regarding himself”. Thus there is no justification to obligate the other player to compensate him for breaking his glasses. A prudent individual either removes his eyeglasses before playing sports or wears special eyeglasses designed for those playing sports.
This ruling underscores the importance of dayanim’s being familiar with not only with the Halachah but also the metzius (realities) of the situation they are adjudicating. The Aruch Hashulchan (C.M. 15:6) accentuates this point as well as does the Chazon Ish who famously remarked that most mistakes in Halachah are made when the posek does not adequately comprehend the Metzius involved in the situation.
A Case at Torah Academy of Bergen County
In 2010, two Torah Academy of Bergen County students requested that I adjudicate a dispute related to the issues discussed above. Young man number one was playing basketball by himself when his friend, young man number two arrived and asked if he could join him in a competitive game of basketball. Young man number one replied that he did not want to engage in a game of basketball since he was wearing brand new eyeglasses and he did not want them to break. Young man number two then pressured his friend to join him in a competitive game and youngster number one reluctantly acquiesced. However, young man number one stipulated before the game began that to avoid breaking his new eyeglasses they would play “not aggressively”.
Not surprisingly, in the course of playing, young man number two while “on defense” tried to “steal” the basketball and caused the eyeglasses to fall and chip to the extent that the eyeglasses were only marginally usable (as determined by the beit din). Young man number one claimed that his friend had played aggressively in violation of their agreement and thus was obligated to compensate him for the chipped eyeglasses. Young man number two disputed this claim arguing that he did not play aggressively and was thus not obligated to pay.
Three Procedural Matters
When I realized that the matter was not a simple one and involved a significant amount of money, I asked two Torah Academy of Beregn County colleagues to join me to form a beit din in line with the Mishnah’s (Avot 4:8) recommendation (see Tosafot, Sanhedrin 5a s.v. Kegon Ana and Shulchan Aruch C.M. 3:3) not to sit as a single judge.
Experience teaches the importance of following the Mishnah’s advice to avoid adjudicating a financial dispute without the benefit of the partnership of two other competent rabbinical colleagues. The complexity involved in resolving monetary disputes (see Mishnah Bava Batra 175b) requires the grappling and combined wisdom and insight of three Torah scholars to arrive at a proper halachic decision. In addition, as anyone who serves as a rabbinic judge knows, passions often run very high when a financial matters are disputed and the losing party will be more likely to accept a ruling of a three dayan panel than a decision of an individual Rav. The rabbis on the panel also spare themselves the enmity of the parties since a three member panel provides for the privacy of each rabbi since the Gemara (Sanhedrin 31a) forbids revealing the opinion of each dayan.
As a matter of proper protocol I revealed at the outset of the adjudication that I am a distant relative of one of the litigants. Although this relationship was distant to the extent that I was not disqualified to serve as a dayan in this case, I felt it best to disclose any potential conflict of interest in line with the Shulchan Aruch’s (C.M. 7:7-12) exhortation for dayanim to meticulously avoid any conflict of interest. Indeed, the Beth Din of America requires its dayanim to list any potential conflict before the start of any hearing.
We should clarify that, upon the urging of the beit din, the two litigants agreed that the dayanim should adjudicate the dispute based on pesharah kerovah l’din, which is a blend of pesharah, compromise or equity and din, strict Halachah. Indeed, the Shulchan Aruch (C.M. 12:2 and 20) urges dayanim to avoid resolving cases solely on the basis of strict Halachah (see Bava Metzia 30b).
Applying Tosafot’s Jousting Case
The aforementioned ruling of Tosafot and the Rama, that one who damages his opponent's possessions while jousting is not obligated to pay for damages because of implicit mechilah, seems to suggest that youngster number two would not be obligated to pay for the damage to youngster number one's eyeglasses. However, in this case, youngster number one requested that the two play “not aggressively.” This appears to be a mesirat moda’ah (disclaimer) that he was not mocheil damage to his eyeglasses caused by “aggressive” play.
However, the stipulation to play not aggressively was vague. When the disputants reenacted the incident in the presence of the beit din it was difficult to determine whether young man number two violated the agreement. Since the rabbis who sat on this beit din (each of whom had extensive experience playing basketball when they were youngsters) determined that it was impossible to decide if young man number two played aggressively, strict Halachah could not obligate him to pay for the damage. A major principle of deciding monetary issues is “hamotzi meichaveiro alav hara’ayah” the burden of proof falls upon the one who demands payment (Bava Kama 46a). Moreover, this scenario is reminiscent of the aforementioned Teshuvot Harosh cited by the Tur (C.M. 421) who wrote about competitive sports “it is impossible for a player to be precise”. Thus, it is unreasonable, once the boys agreed to play competitively, to expect each other to be precise in his playing non-aggressively. Therefore, strict Halachah would not obligate youngster number two to compensate his friend for the chipped eyeglasses.
Pesharah Kerovah L’Din
However, the young men had agreed to adjudicate their dispute in accordance with pesharah kerovah l’din as we noted earlier. The Beth Din of America in its rules and proceedings (available at www.bethdin.org) explains pesharah kerovah l’din:
Compromise or settlement related to Jewish law principles (p'shara krova l'din) is a process in which the relative equities of the party's claims are considered in determining the award. For example, in Jewish law (din), the party that proves the "truthfulness” of its case "more likely than not," as well as proving the Jewish law basis for its entitlement, is qualified to recover 100% of the amount sought, whereas in compromise or settlement related to Jewish law principles (p'shara krova l'din) such a party would not necessarily recover 100% of the amount sought, depending on that party's conduct throughout the matter under dispute (emphasis added). So too, in a case where neither party proves the "truthfulness" of its case "more likely than not," or does not prove the Jewish law basis for its entitlement, Jewish law (din) would not provide for an award, whereas compromise or settlement related to Jewish law principles (p'shara krova l'din) could provide for an award in that case.
Moreover, the preamble to the Beth Din of America’s Rules and Procedures state:
These Rules of Procedure are designed to provide for a process of dispute resolution in a Beth Din which are in consonance with the demands of Jewish law that one diligently pursue justice, while also recognizing the values of peace and compromise.
In addition, in a document signed by leading (especially in the area of financial adjudication) halachic authorities of Israel’s Religious Zionist community such as Rav Yaakov Ariel, Rav Ratzon Arussi and Rav Dov Lior the principles of pesharah kerovah l’din are articulated (Techumin 30:338). In a footnote they cite as one of their principles a statement of Rav Avraham Yitzchak HaKohen Kook (Teshuvot Orach Mishpat C.M. 1) “one of the considerations to prefer pesharah is in circumstances where ‘the Din contradicts one’s sense of fairness (“yosher hasichli”) in light of the circumstances of the specific situation being adjudicated”. (See Gray Matter 2:193-200 for a further explanation of the concept of pesharah.)
Application to our Dispute
Although strictly speaking young man number two is not obligated to pay, nonetheless he does share some of the blame for this mishap with the glasses. Indeed, young man number one imprudently agreed to play not realizing the imprecision of their agreement and not recognizing that eyeglasses can be broken while playing competitively even if the agreement was to play “not aggressively”. However, young man number two did not act properly by pressuring his friend to play competitively when he did not truly wish to do so.
The prohibition of lo tachmod (Shemot 20:14) forbids one to pressure another to sell or give him an item the former desires (Shulchan Aruch C.M. 359:10). While young man number probably did not covet a specific item, the prohibition of lo tachmod nonetheless teaches that it is wrong to pressure someone to do something he does not wish to do. Indeed, the Shulchan Aruch (E H. 154:21) does not permit pressuring a husband to give his wife a get unless the husband’s improper behavior justifies such pressure (see Gray Matter 1:19 for further discussion of this issue).
Accordingly, the beit din considered the “party's conduct throughout the matter under dispute” and determined that “yosher hasichli” demanded that youngster number two partially compensate his friend for the chipped eyeglasses. The beit din followed the approach of Rav Yaakov Reischer (Teshuvot Shevut Yaakov 2:145, cited in Pitchei Teshuvah C.M. 12:3), who writes:
The Dayanim crafting the Pesharah are empowered to act in accordance with the essence of the matter in light of their perception of the issue with the goal of reconciling the parties without favoring one party over another. In this case where the parties agreed to Pesharah Kerovah L’Din it appears to me that reducing a third of the obligation is considered to be Kerovah L’Din.
In our case the erstwhile friends had grown resentful of each other. Young man number one was upset that his schoolmate did not assume responsibility for his misjudgment and young man number two resented the fact that his friend was shifting all of the blame to him. Thus, the beit din decided that both equity and compromise called for young man number two to pay a third of the cost to repair the eyeglasses. The beit din in turn required young man number one to engage in due diligence in finding the lowest price for competent repair of his eyeglasses. After comparing prices, he found someone who could make the repair for one hundred dollars and the beit din thereupon ordered young man number two to pay thirty three dollars.
Indeed, although the Rama (C.M. 378:9) codifies the aforementioned Tosafot exempting jousters from tort liability without any dissent from the commentators, the Aruch Hashulchan C.M. 378:21 adds “if it appears to the Beit Din that they need to take preventative action to avoid improper behavior, they are authorized to obligate the mazik [the one who caused the damage] because many problems can arise”. The beit din’s ruling is in harmony with the Aruch Hashulchan that Tosafot’s “sports exemption” is not absolute.
Conclusion
One who damages another while playing sports is, generally speaking, excused from paying damages. There may be exceptions and thus the question should be posed to a Rav who is expert in Halachah and familiar with sports.
In the case at Torah Academy of Bergen County, the beit din, by compromising that the damager should pay one-third of the value of the damage he caused, achieved its goal of meeting the demands of Halachah to diligently pursue justice, while also recognizing the values of peace and compromise.
Although at first a bit resistant to the beit din’s ruling, the two schoolmates accepted the decision. By facilitating both sides assuming partial liability for the mishap, the two schoolmates reconciled and resumed their friendship.
Postscript
I thank Rav Aharon Zev Feigenbaum whose outstanding article on this topic (Beit Yitzchak 5767 pp. 260-265) was helpful in the preparation of this chapter.