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 Shabbat Parashat Beshalach-Tu Bishvat | 5764P’ninat MishpatDistancing Damages - Part IV
We saw last time that even in cases where one does not have to pay for indirect damages done (g’rama), one has to remove certain potential damaging factors. R. Yossi says that the “damager” has to distance the dangers only in cases of giri dilei, cases where the damage is more direct than other cases of g’rama.
The Ritzva (cited in Haghot Maimoniot, Sh’cheinim 10:5) points out that R. Yossi, if perceived as being insensitive to the needs of protection of neighbors, is being misunderstood. Consider R. Yossi’s objection to Rabbanan’s requirement that one who plants a tree in his own field must distance it 25 amot from the water storage pit in his neighbor’s field. R. Yossi is not less concerned with the needs of the pit owner, says the Ritzva but factors in the basic rights of the tree owner. Why is the need for an undamaged pit more important than the right to plant trees in one’s field? Why can’t the pit be moved to somewhere it will not be damaged by the tree’s roots? To balance the interests, R. Yossi ruled that if one side can be identified clearly as “the damager,” then he has to distance himself. However, in cases of less direct damage, we allow autonomy to the two sides.
According to the Ritzva’s approach, one can act in a way that might cause indirect damage only in a place or a situation where he is protecting important needs which would be affected if we demand that he distance potential damages. This approach seems to have strong basis in the terminology of R. Yossi, who didn’t just say that one may cause indirect damage. Rather, he says, “this one can dig within his own [field], and this one can plant within his own [field].” It is because of the rights in his own field that he can continue to live normally and ignore the negative impact on his friend.
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