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So a friend of mine showed me a Shulchan Aruch (C.M. 412:1 and 412:2) the other day (which is based on a gemara in Bava Kama). To paraphrase the relevant points of the original text:

In 412:1 it says that if Reuven places a barrel in a public domain and Shimon tripped and broke it - Shimon is exempt from paying damages.

In 412:2 it says that if Reuven places a barrel in a place where he is allowed to and Shimon tripped and broke it - Shimon is liable for the damages. However, if it is dark or the entire road was filled with barrels, Shimon is exempt.

Finally, if the entire road is filled with barrels to an extent where it's impossible to pass - even if Shimon broke it with his hands he is exempt.

My friend is trying to figure out if this Halacha can be applied to a modern day case. Suppose, Reuven double parks his car illegally on a street. Shimon who is behind him thinks he can squeeze by so he starts inching forward... Except: crunch! Shimon hits Reuven's car and damages it.

So can we say that this is the same case as one who placed his barrel (car) in such a way as it blocks the street? Would Shimon therefore be exempt as he is just trying to get thorugh? Or is there some reason that this case is different?

  • According to dina d'malchuta in most countries nowadays, Shimon would be chayav. Therefore this question only applies if the car he hit was that of another Jew. – Daniel Jun 5 '15 at 20:56
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    Well according to that halacha, if we make this comparison, when he double parked and left no room to make it through, you can hit the gas and side swipe him with full intention!:) yeehaa! – user6591 Jun 5 '15 at 21:16
  • A double parked car is there shelo birshus....I think that's a fair assumption – Shokhet Jun 5 '15 at 21:21
  • @Daniel Correct. I'm assuming this is being discussed in a Jewish court. – yydl Jun 5 '15 at 21:32
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I googled and found this exact application of these rules in the Business Halacha Institute's newsletter for Shoftim 5773.

First, they indicate that the first principle you quote from 412:1, which they cite the Gemara in Bava Kama 27b for, does not apply here, since:

The rationale is that people are not expected to be extra careful while they are in motion. Obviously, that does not apply here, since a car is a large object that one is expected to see, and a driver is certainly expected to watch his driving.

However, they apply the second principle, from 412:2 and from Tosafot dh "meshaber veyotzei" on Bava Kama 28a, and conclude that:

Consequently, if the person double-parked, leaving you without sufficient space to get out, you must attempt to carefully drive through the space that is open, but if you drove in a careful and acceptable fashion and still scratched his car, you are not liable.

It sounds like the dependence of the judgement on whether you drove carefully is based on the idea that your ability to get through without damaging when driving carefully would prove that your way wasn't completely blocked, while scratches you leave while trying to get out carefully would prove that your way was completely blocked, making 412:2 applicable.

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Since you agreed to hear some reason why it may be different, I'll give what I think is a reason to differentiate.

The reasoning one can smash his way through the filled up reshus harabim is, as the Aruch HaShulchan (siff 3) explains, in order to make himself a pathway. That makes sense with the barrel case. The double parked car might be different as it is going to move in two minutes when the passenger gets out, there is no desperate need to make a path. So there would be no allowance to just plow through.

See the next siman about the barrel carriers. If done properly, a person does have the right to hold up the reshus harabim temporarily. The car dropping off a passenger is similar in this sense.

  • That assumes we apply the case of "smashing through". My case is not a case of smashing though, but a case of trying to avoid smashing. – yydl Jun 5 '15 at 22:16
  • I think the a.h.'s logic is even for a case of not smashing through. He admittedly did say it by the smashing case. But if not for the fact that the barrel leaver can't infringe on the traffic, and therefore one is allowed to have gone through, What is the svara to pattur? I think the logic is similar. And patturing a willful act and not an accidental one seems strange. – user6591 Jun 5 '15 at 22:23
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    ..I'd be real surprised if percentage-wise, double parked cars were discharging passengers--usually, AFAICT, their owners are "quickly" shopping or doing other stuff AWAY from their vehicle. – Gary Jun 6 '15 at 12:49
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    To clarify: would your answer agree in a case where there was no assumption of just 2 minutes that he is exempt? – yydl Jun 8 '15 at 19:10
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    Inasmuch as this case appears to be where he is illegally parked, it doesn't seem comparable to a case where he has "the right to hold up the reshus harabim temporarily" (unless somehow the right to double-park is so essential as to render laws passed limiting it as invalid in the eyes of halacha - which seems unlikely since it does indeed seem almost identical to the halachic barrel case...). In the case of the barrel carriers, that is a legally recognized right. – Loewian Dec 2 '15 at 15:24

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