someone told me there was an article in the hamodia that related the following shaaloh that was asked to Rav Elyashuv shlit"a;
someone gave someone else a lift on erev shabbos. after the boiling hot weekend they came back to their car. when they opened the door they were overwhelmed by the smell of rotten chicken from a bag their passenger had left in the car on friday. the smell was so bad that they had to have the upholstery in their car replaced. the question is, does the person who received a luift have to pay for the cost of replacing the upholstery?
rav elyashuv shlit"a ruyles that yes, they do have to pay. may take on it is that this is equivalent to avno sakino umasao sheinichan al hagag venaphlu beruach metzuyah and they were mazik while they were falling down in which case the person who put them on the roof is chayav mishum esh.
the chicken has the potential to be mazik once exposed to the sun and rotted, the sun is like the ruach that blows the fire along / blows the item off the roof.
I have a different question;
What would be the halachah if the person with the bags came to the car owner on erev shabbos and said to them; can I please leave my bags in your car for an hour, I have some more shopping to do and need somewhere to leave them while I do the rest of my shopping. Then they forget to take the bags out of the car and the smell of the chicken damages the upholstery.
In this case the person brought the bags into the car bireshus, and he is a shoel on the car. Then he was mazik the car by not removing the bags. The question is - I think there is a ketzos somewhere who says that if I see your sheep in my chatzer and I intend to steal it via my chatzer - then I am not yet a ganav becuase I have done no maaseh genevah. In order for me to become a ganav I have to do a maaseh genevah - for example closing the door on the courtyard.
In the case of the chicken in the car - my initial leaving the chicken in the car is bireshus. Therefore the 'not taking the chicken out of the car' which is not a maaseh (mazik) - cannot by itself be a cause of me having to pay for the item that I am a shoel on (the car).
So my question is - do we say just as in the case of a ganav there must be a maaseh genevah - so too in the case of a shomer who is mazik there must be a maaseh hezek?
(The difference between this case the case of the hamodia is that when the person took the lift with their bags - there was never any agreement or arrangement between the passenger and the car owner. The bags were there becuase he was there and he was never explicitly machnis them bireshus.)
Any thoughts anyone :-)
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