Scraping Out


Chanan was about to drive out of the parking lot of his apartment block. Unfortunately,
some driver had parked his car outside in a way which partially obstructed the
exit. Chanan examined the remaining space and reckoned he would be able to get
through. He almost made it! When he was out in the street he noticed that he
had clipped off the obstructing car's mirror. The irate owner now claims the
cost of replacing the mirror from Chanan. Chanan retorts that this motorist had
no right to deny him his right of


Reuven was looking for a place to store his flasks of wine and oil. He noticed
that there was a large empty courtyard nearby. Without asking permission, he
filled the entire area with his merchandise. When Shimon, the owner of the courtyard,
opened the door of his house he found his access to the street barred. Our Sages
inform us (Tractate Bovo Kamo 28a) that Shimon may make his way out of
the courtyard even if this involves breaking some of Reuven's illegally placed
barrels. Gad left his pottery jug in the middle of the street. Asher fell over
the jug and broke it. Our Sages inform us (Ibid.) that Asher is not liable for
the damage he caused.  These cases are cited as proof to the opinion of
Rav Nachman (Ibid 27b) that, under certain limited conditions, a person may take
the law into his own hands without receiving permission from Beis Din. The
Shulchan Oruch
(Choshen Mishpot 4) rules in accordance with this opinion.

From here we can learn that if a person deposits his property in another person's
domain without his permission or in a public thoroughfare, he is risking their
safety. If they are positioned in a way which allows pedestrians no reasonable
passage unless they tread on these items, they may do so. Even if they break
the obstructing property, they will not be liable to pay for the damage. The
pedestrians are not obligated to invest effort in stacking or removing the offending
items. They are also under no obligation to make a lengthy detour in order to
avoid damaging the illegally deposited items. However, if it is possible to pass
without causing damage or to make a small detour, they are obligated to do so.
If they then insist on walking over the illegally deposited items, they will
be liable to pay for any damage.

Let us apply these principles to our case. Chanan judged that enough space
remained for him to exit the parking lot without causing any damage to the obstructing
car. He drove out, taking reasonable care not to scrape the other vehicle. Since
he had the right to make his exit and the illegally parked car was infringing
on this right, he is not liable for any damage caused as a result of driving
out with reasonable caution. On the contrary, it was the driver of the obstructing
vehicle who was negligent in parking his car in a dangerous position. Furthermore,
adds Rav Spitz (Mishptei Hatorah, Bovo Kamo No. 54), even
if a more skilled driver would have succeeded in making his exit without touching
the obstructing car, Chanan would still be exempt from paying for the damage.
Each individual is only obligated to do what is within his own personal
ability to avoid damaging obstructing items.

If Chanan's own car also sustained damage, would he be entitled
to compensation from the driver of the obstructing car? Does this person's illegal
parking turn him into a mazik b'yodayim
(an active damager)? Once again, the answer can be found in the section quoted
above (27b). When Asher fell over the pottery jug which Gad placed in the street,
he does not have to pay for breaking it. However, if he sustained injury as a
result of the fall, he has no claim against Gad. At the end of the day, it was
his own breaking of the jug which caused his injuries.

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