(2011/5771)
Often when playing sports, players are subject to property damage, such as damaged eyeglasses, or even bodily damage (broken bones etc.) The Mishnah (Bava Kama 26a) teaches that “Adam Muad LeOlam, Bein Shogeig Bein Meizid”, a person is always liable for the damage he causes, whether it was done deliberately or even by mistake. Does this principle apply to Nezek (damage) done while playing sports?
Oneis – Tosafot vs. Ramban
The first question we must address is whether the Mishnah’s statement includes Nezek done BeOneis (circumstances beyond one’s control). This question is the subject of a celebrated debate between Ramban and Tosafot. Tosafot (Bava Kama 27b s.v.U’Shmuel) believe that one is not obligated for Nezek if done BeOneis Gamur, if the situation was entirely beyond one’s control. They cite as proof the Jerusalem Talmud, which states that if one person went to sleep, 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. Rabi Yehuda) disagrees and rules that one is obligated even if the situation is totally beyond one’s control. Ramban argues that the case of the Jerusalem Talmud differs from the Mishnah’s ruling because the second person acts irresponsibly by lying down next to a sleeping person. Thus, the first person is not excused due to Oneis 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. On the one hand, the damage is not done in a manner defined as Oneis Gamur. On the other hand, the one who is damaged plays 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, a game was played in the Beit HaMikdash in which people would grab Lulavim from children. This was not considered theft since it was known that this game would be played. This might be compared 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 regarding those young people who ride horses towards a groom, fight each other (i.e. jousting; recall that the Ba’alei HaTosafot lived during the Middle Ages), and in the process tear the other parties’ clothes or damage the other parties’ 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, he understands the risks involved and thus is implicitly Mocheil (waives the right to sue for) damages done to him. The Rama (Choshen Mishpat 378:9) rules in accordance with Tosafot without any dissent from the commentators. The Rama even applies this principle to damage done while celebrating on Purim (Orach Chaim 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 on Purim.
The Magein Avraham (695:7) and Mishnah Berurah (695:14) exclude from this exemption, however, damage that was done deliberately. This is similar (LeHavdil) to the policy of America’s National Basketball Association (NBA), which exempts damage caused in the normal course of play (even from ordinary “fouls”) but obligates players to pay for damage done in the case of a “flagrant foul” in which it appears that there was deliberate intention to harm the other player.
Damage Done to Another’s Body – The Kenesset HaGedolah vs. the Agudah
The Magein Avraham (ibid.) cites a difference of opinion between the Kenesset HaGedolah and the Agudah as to whether Tosafot’s exemption applies even to damage done to another’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,’ or ‘break my hand,’ and he complies with his request, the person who fulfills the request is responsible for the damage even if the victim stipulated in advance that the damager would be excused from compensating the other party. If one instructs another ‘tear my clothes’ or ‘break my jug’ and the other person complies, he must pay damages. However, he is excused if they stipulated in advance that he would be exempt from this action.”
The reason for the Mishnah’s distinction between property and personal damage is straightforward. The Torah regards one as the owner of his property but not as the owner of his body. The body belongs to Hashem. Thus, one may be Mocheil damage done to his property but not to his body. Accordingly, one may be Mocheil damage done to his property while playing sports but not 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): “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 they did not intend to damage the other. It is understood that when two people wrestle, their primary objective is to bring the opponent to the ground. It is impossible for players to be precise and wrestle the other to the ground gently so the opponent is not hurt, since they are playing with all their might and each one intends to wrestle the other to the ground. The players are Mocheil at the onset of the competition, and it is with this mutual intention that they wrestle.”
The Rosh is difficult to understand in light of the Torah’s belief that one does not own his body, and thus one does not enjoy the right to waive claims against damage done to his body. The Sema (421:10) clarifies this matter by explaining that “They were both equal participants in the damage.” In other words, the exemption from compensation does not emerge merely from Mechilah. The exemption results because the one who lost his eye was a willing participant in the damage he sustained. This is analogous to the aforementioned situation in which one lies down next to another who sleeps and is damaged, in which case even the Ramban exempts the one who did damage.
The dispute between the Kenesset HaGedolah and the Agudah is 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 Kenesset HaGedolah that one is obligated to pay for bodily damage (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 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 Halachic authority occasionally plays basketball during the summers he spends at the 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 moderate fouling is an expected part of the game, and thus when one plays basketball, he consents to being moderately fouled. I should add that my experience playing basketball during my years of study in Israel taught me that basketball is not played less aggressively in Israel. 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 because 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,” and thus we may not 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 playing sports.
This ruling underscores the importance of Dayanim being familiar not only with the Halachah but also the Metziut (reality) of the situation they are adjudicating. The Aruch HaShulchan (C.M. 16:6) accentuates this point. Indeed, the Chazon Ish, famously remarked that most mistakes in Halachah are made when the Poseik does not adequately comprehend and assess the Metziut of the situation.
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. Next week, we shall present an actual case that was adjudicated by a Beit Din composed of this author and two other TABC Rebbeim who also have extensive experience playing basketball.
Postscript
I thank Rav Aharon Zev Feigenbaum whose outstanding article on this topic (published in Yeshiva University’s Beit Yitzchak 5767 pp. 260-265) was helpful in the preparation of this essay. May this article serve as a Zechut before Hashem to send a Refuah Sheliemah to his brother.