by Chaim Weber

Throughout the Torah, we have the concept of “oneis” – that one is not responsible for complete accidents.

What about in the realm of damages?

If Reuven damages Shimon due to a complete and unforeseeable accident, is Reuven responsible?

At first, this appears to be a clear Gemara.

The Gemara in Bava Kamma (26b) states that a person is liable for any damages he causes, “whether inadvertently or on purpose, whether by accident or willingly.”

We see here that oneis is not an exemption in the realm of damages.

However, the Gemara later in Bava Kamma (28b) says that if someone trips while carrying utensils and the utensils shatter, he is not responsible for damage the utensils later cause because it is an oneis.

The Gemara proceeds to debate if tripping is indeed an oneis. Regardless though, we see that if one is an oneis, one would be exempt. We see that the exemption of oneis does apply to the realm of damages.  How do we resolve this contradiction?

The Opinion of Tosfos

Tosfos says that there are two categories of oneis.

One is only obligated for avoidable accidents (oneis she’eino gamur) but not for accidents that were completely unavoidable (oneis gamur).

For an oneis she’eino gamur, there was some level of negligence on the damager’s end. That’s why oneis is not a valid exemption.

However, for a complete accident where the damager was not negligent at all, one is exempt.  Tosfos cites proof for this from a Yerushalmi:

The Yerushalmi says that if Reuven goes to sleep in an empty bed and Shimon lies down next to him afterwards, Reuven is exempt from any damage he caused Shimon in his sleep.

Why?

Tosfos explains because this is an example of an oneis gamur and one is not responsible for an oneis gamur.

The Opinion of the Ramban

The Ramban (as quoted by the Shita Mekubetzes, Bava Metzia 82b) says that one is liable for all cases of oneis, whether avoidable or not.

The only case where an oneis is exempt is when the victim played a part and invited the damage onto himself.

This explains the Yerushalmi brought by Tosfos:

If Shimon lies next to Reuven after Reuven went to sleep, Shimon invited any subsequent damage onto himself. That’s why Reuven is exempt. It has nothing to do with the claim of oneis – rather, Reuven is exempt because Shimon can’t claim a grievance for damage that he brought onto himself.

Even to the Ramban, oneis is only an invalid exemption when a person caused damage. However, if a person’s property causes damage, then the claim of oneis would be a valid exemption.

This would explain the Gemara on 28b:

When someone trips and their utensils break, any damage later done by the utensils is not an example of a person damaging. Rather, it is an example of his property damaging. Even according to the Ramban, the exemption of oneis remains when one’s property damages.

Oneis in General – Limitation on Liability or Perhaps More?

Damages aside, the rule stands that one is generally not responsible in cases of oneis.

Aside from accidents, oneis also includes situations where a person is forced to perform something due to a risk to their own life. For example, if a person is (lo aleinu) held at gunpoint and forced to perform an aveirah, one is not liable because it is considered an oneis.

The simple reading of this halacha is that oneis is a mere exemption from liability. The perpetrator can say: “It’s not my fault. I didn’t do this on my own free will. Therefore, I’m not responsible.”

Rav Elchanan Wasserman zt”l adds that perhaps there is more.

Rav Elchanan suggests that when an action is performed in a state of oneis, it’s not an action that relates back to the perpetrator. Rather, it is as if the action was performed on its own.

He cites a Chemdas Shlomo that proves this from an interesting Gemara in Avodah Zarah (54a).

The Gemara discusses the halacha of ne’evad – if an animal is worshiped as an Avodah Zarah, it is disqualified from being brought as a korban. However, if a person is forced to serve an animal as an avodah zarah upon threat of his life, it is not considered ne’evad because he was an oneis.

The Chemdos Shlomo asks: Why does oneis matter here? True, one is not liable but the animal was still worshiped as an avodah zarah? Shouldn’t it be disqualified?

Furthermore, we have a principal that in cases of idolatry, ye’hareig v’al yaavor – that one should give up his life rather than serve avodah zarah. Shouldn’t this animal therefore be considered ne’evad and disqualified from being brought as a korban?

The Chemdas Shlomo concludes that an action performed in a state of oneis is as if it was not performed by the perpetrator, but as if it happened on its own.

Rav Chaim Ilson, shlita, thought that perhaps this proof was not absolute based on a Rabbeinu Channanel.

Rabbeinu Channanel (on Avodah Zarah 54a) says that an animal is only disqualified for ne’evad if the idolatry performed was worthy of the death penalty. If the idolatry performed was not worthy of the death penalty, the disqualification of ne’evad would not apply.

That’s why the Gemara brings the concept of oneis. Since idolatry under threat of one’s life is not deserving of the death penalty, that’s why it’s not considered to be ne’evad.

Rav Elchanan discusses further proofs and questions on this concept in Kovetz Shiurim (Kesubos 5).

Can Rav Elchanan’s Chiddush and the Ramban Co-Exist?

As we mentioned, the Ramban holds that when a person damages, oneis is not an exemption.

At first glance, this seems hard to fit with the chiddush of Rav Elchanan.

If oneis says that when one performs an action in a state of oneis, the action does not relate back to the perpetrator, why would the realm of damages be any different? (While the Gemara does bring a special passuk to include accidental damage, it’s unlikely that the passuk is telling us to view an action done in a state of oneis differently by damages than in all other areas in the Torah.)

One would have to say that even though the damaging action does not relate back to the perpetrator, there is a special exception by damages that one is still liable.

The simpler approach would be to say that Rav Elchanan’s chiddush fits better within the opinion of Tosfos.

This week’s learning should be l’iluy nishmas Sam Lyss z”l, Shmuel Efram ben Yitzchak Chaim