Reply To: The Ins & Outs Of Nezek

One last point about why the person going into the bor is a mayse nizik, while the the owner of the chararah was mazik himself. In both cases there is another person who was also poshea. By bor, the person who built the bor is poshea, and by the chararah the person who didn’t watch his dog is poshea.

But the person who owns the chararah is responsible for an object that is mazik, namely, the chararah. When you are responsible for such an object, you are mazik yourself. By the bor, the object that is mazik is the bor, and the person who falls in is not responsible for it. He may be doing the mayse that causes the bor to be mazik him, but he is not the responsible party for the thing that causes the hezek. As such, he can only be nizik himself and not mazik himself.

Short summary of two posh’im

1) two posh’im (owners of dog and chararah) cause hezek, both chayav. If the damage is to the gdish of one of them, the other guy pays his half.

2) nizik is poshea first causing the mazik to smash his thing, the mazik is fully chayav, because the nizik is gramah. However, the inyan of kol hamishaneh etc. may sometimes apply.

3)nizik is poshea second and stupidly causes the mazik’s peshia to be mazik him. According to rashba’m the mazik is always patur. According to others this is only true for bor, because you (or the animal) are doing the action of going into it.

The machlokes is when a person was poshea with a fire and an animal did not run away. But if a person did not remove a coal placed on him by another, all agree that the mazik is patur, because adam bikavanah paters the mazik. However, the gemarah says that a person is only poshea for not removing a hurt to himself, but he is not poshea by not removing a coal placed on his clothes, because he just wants the other guy to pay for it.