The Gemara brings various "Ukiimtas" with regard to the specific situation that the Misnna is talking about when it discusses someone who trips on a vessel in the public domain. Why would anyone of those uukimtzas be patur if a man is always responsible for his actions, and as it says on 26b Bava Kamma that one is also Chayav for damages even if it is "Oness". So how could they say that the person is pattur in those situations?
Zev Bell, Toronto
1) This question is asked by Tosfos here (27b, DH u'Shmuel). Tosfos explains that when the Gemara (26b) states that a person is liable even for Ones, this does not apply to "Ones Gamur," total Ones, where the person could not be held responsible at all for what happened. For example, if a person went to sleep and afterwards someone lay down next to the sleeping person and the latter turned over in his sleep and damaged his neighbor, the Yerushalmi rules that he is exempt from payment because there was absolutely nothing the sleeper could have done to prevent this.
2) We can now explain the Ukimtos of the Gemara. D'Vei Rav said in the name of Rav that when someone filled the main road with barrels, the public are not held responsible for breaking them, because they have the right to walk on the main street. I am not saying that they have the right to deliberately break the barrels, but we can certainly understand that if the public tried to avoid breaking them but were unable to get past without causing damage, they are exempt because this is an Ones Gamur since they are entitled to walk normally on the main road.
3) In the next Ukimta, Shmuel said that if someone broke a barrel walking along in the pitch dark (with no electric lights in the street!) he is exempt. Sometimes, a person has to walk in the pitch dark, and he tries to see where he is going but sometimes it is impossible to move without causing damage.
4) In the next Ukimta, Rebbi Yochanan said that a barrel was left in a corner in a way that a person walking in a normal way would simply not see it. There is no way that the pedestrian could avoid damaging the barrel, so this is Ones Gamur and he is exempt from payment.
Kol Tuv,
Dovid Bloom
Thanks so much! But in addition...
The gemara also says that according to Rav, even if he breaks it intentionally he would be pattur. Wouldn't this not be Onness Gamur?
As the Gemara says:
אמר רב זביד משמיה דרבא הוא הדין דאפי' שבר והאי דקתני נתקל איידי דבעי למתני סיפא ואם הוזק בה בעל חבית חייב בנזקו דדוקא נתקל אבל שבר לא מאי טעמא הוא דאזיק אנפשיה קתני רישא נתקל
So that would mean, according to Rav Zevid's explination of Rav's opinion, that even if they broke it intentionally, the perpetrator would still be pattur, as, according to Rav, he has the right to get from point A to point B, even it means breaking the vessel intentionally. But isn't this not Onness gamur? So how is he pattur according to Rav? Thanks
Yes, this is correct. However, the Tur (Choshen Mishpat 412:3) writes that this applies only if the barrels filled up the entire street in such a way that it is impossible to pass without breaking them. Then we can use the rule that "Avid Inish Dina l'Nafshei" -- a person has the right to take the law into his own hands when doing so is clearly justified. In this case, since every citizen has the right to get from point A to point B, and since this right is being denied to him by the barrels, he is allowed to break them.
Many thanks for your insights,
Dovid Bloom