Reply To: The Ins & Outs Of Nezek

The concept of bor breshus is as follows.

Sometimes society allows people to have boros and they need not watch it, but they are still chayav when they are mazik. The reason for this is as follows. The reason why you need not watch the bor is because people are not usual to watch such boros (that are usual to make). Your not a complete o’nes, because you are capable of watching it. What you have, though, is a half baked o’nes (similar to when your kid tells you “but everyone does it!”). This half o’nes allows you not to watch it, because people generally do not do so, but it is not enough of an o’nes to patur you if it is mazik.

Sometimes, however, you are patur with such an o’nes. The gemarah says if it is not usual for people to watch were they are going on the road, they need not pay for damaging the things they step on. We will shortly see why this is different.

Lets first go to the concept of shneyhem brshus, which is also chayav. It is considered shneyhem breshus if two people bump head on into each other, because people generally don’t always look out so much for such things. The basic idea is that the mazik is chayav, but there is a seperate ptur for the mazik which sometimes applies which I won’t go into now.

According to the RI’s pshat in Tosphos, if someone is ahead of you walking in the same direction, you only are careful about him in the begining, to better choose a not direct path behind him, but if this is not possible, you don’t watch him all the time, and if he stops and you bump into him, you are not poshea and are patur from being mazik him. Tosphos asks why is this different from shneyhem bershus that is chayav?

Tosphos answers, because the guy who stopped was poshea. We now have the answer for before as well. The person who placed the kad was also poshea. Even though, as explained before, the pshea of the nizik does not at all patur the mazik (because the nizik is gramah), here the heter for the mazik is because he is o’nes. We only don’t consider his o’nes an o’nes when nobody else was poshea, but when someone else is poshea, we do consider his o’nes an o’nes. The other party does not need to be completely free from responsibility for the other to be chayav. Even when both are b’rhus, both have a half o’nes, and the mazik is chayav. Since both have a half o’nes, we say that both are considered poshea, and when both are poshea, the mazik is chayav.

However, the mishnah says that if the guy in front stops and the second guy gets damaged he is chayav, and the same tosphos says because the first was poshea. Why does the first have to be poshea in this case? Didn’t we just say that both can be b’rshus and the mazik is chayav? Both can have the half o’nes and still the mazik is chayav!

If you go back to the rules of two posh’im you should be able to figure out the answer.

By shneyhem b’rshus they both have a half o’nes. Such an o’nes is considered poshea, unless we can pin another who is poshea; then we consider the half o’nes an o’nes. When both are b’rshus, we can’t pin anyone more than the other, so we consider both to be posh’im.

When the guy in back is mazik the guy in front (who stopped), if both are posh’im the mazik is chayav. Thats why tosphos had to say that the guy who stopped is poshea, so the back guy gets the heter of b’rshus.

But when the second guy gets damaged, the first guy who stopped damaged him in a bor type of way. Everyone agrees here that two posh’im make the mazik patur. As such, shneyhem b’rshus is not enough here, because they will be like two posh’im and the mazik is patur. As such, tosphos had to say that the first is poshea in this case too. Since he is poshea, now the second guy is not considered poshea, because he gets the o’nes of his half o’nes since the other was poshea. Now the bor guy in front is chayav.