NEW YORK (VINNEWS/Rabbi Yair Hoffman) It happened today in Brooklyn. In a camp. At a basketball game. Both players were over the age of Bar Mitzvah. Both were going for the ball, and one fouled the other. The other boy’s glasses were knocked clear off his face and got smashed. They will be called Reuvain Fouler and Shimon Hotegesmashed.

Boruch Hashem, both RF and SH were alright. Alas, the glasses were hot ge’smasht in ganzen. What is the halacha? Who pays for the glasses — Reuvain or Shimon?

At first glance, one might think that the concept of adam muad l’olam would apply. The Mishna in Bava Kamma (2:6, 26a) states a rule: adam muad l’olam. A person is always responsible. On purpose or by accident. Awake or asleep. The Gemara (26b) learns this from the words of a passuk in Shmos 21:25. The Rambam codifies it (Hilchos Chovel u’Mazik 1:11), and so does the Shulchan Aruch (Choshen Mishpat 378:1) — for damage to a person’s body and for damage to his property too.

As an example, the Chavos Yair (siman 169), dealt with a houseguest who went to sleep and forgot to blow out the wax candle on the table. The table burned. So did a chest of the host’s dishes. The guest pays. He did not mean to do it, and it did not matter.

So Reuvain would owe a new pair of glasses.

But in basketball there are two kinds of fouls. There is the common foul and the flagrant foul. The common foul is, well, common. The flagrant foul is defined as unnecessary contact committed by a player against an opponent. And that one is not so common.

Not Every Accident Is Equal

The Rishonim argue about how far adam muad l’olam really reaches.

Tosafos in Bava Kamma (27b) says there are two very different kinds of accidents. There is the kind that is almost carelessness — comparable to a watchman losing an object — and for that a person pays. And there is the kind that is truly not his fault — comparable to an object being stolen from him — and for that he does not pay. Tosafos brings a proof from Bava Kamma 99b: an expert shochet who was slaughtering for free and ruined the animal is exempt, because what happened was simply out of his hands.

The Ramban (in Bava Metzia) disagrees sharply. In his view a person pays even for a total accident. His proof is a man who climbed onto a roof, was blown off by an enormous storm, and caused damage on the way down. He pays. A storm like that is completely unforeseeable, and he is still liable.

The Rambam sides with the lenient view. In Hilchos Chovel u’Mazik (6:4) he rules that a man climbing a ladder whose rung slipped out or turned out to be worm-eaten is exempt, because that is a makka bidei shomayim — a blow from Heaven, not from him.

Three Levels, According To The Magid Mishneh

The Magid Mishneh (Hilchos Chovel u’Mazik 1:12) organizes the whole subject into three levels:

One. Real carelessness — what the Gemara calls an “ordinary wind,” meaning something anyone should have seen coming. Even without intent, he pays four of the five classical payments, though not for embarrassment.

Two. The middle case — not careless, but not a total accident either. An “unusual wind.” Here he pays for the damage itself and nothing more.

Three. A complete accident. Most Rishonim hold he is exempt.

Wrestlers

The Rosh (Teshuvos HaRosh, Klal 101, siman 6) was asked about two men who were wrestling. One threw the other down, landed on him, and blinded his eye. The Rosh rules that he is exempt, and gives two reasons.

The first is accident. The second is far more interesting: mechila. Two men who wrestle both know exactly what they signed up for. The whole point of wrestling is to throw the other man down. And nobody can control his own body that precisely — they are pushing with all their strength. So each one forgave the other in advance. As the Sma puts it (Choshen Mishpat 421:10), it is as though they had written off any injury before they started. The Shulchan Aruch rules this way in Choshen Mishpat 421:5.

The Rosh’s first reason came from the braisa about two people running in a public street who injured each other. Both are exempt. Running there is permitted, and the harm was unintended.

But Tosafos in Bava Kamma 32a reads that braisa a bit differently, and so does Rashi in Bava Kamma 48a. The exemption applies only where they were injured — huzku — meaning they collided without either one doing anything to the other. Where one actively damaged the other — hiziko — he pays, even though he had every right to be there. The braisa on 48b draws exactly that line. This is the ruling of the Rambam (Chovel u’Mazik 1:11 and 6:3), of the Shulchan Aruch (Choshen Mishpat 378:7), and of the Sma there (s.k. 10). The reason, as the Sma says, is that adam muad l’olam, and a plea of “it was an accident” is simply not accepted.

So the Rosh’s blanket exemption is not the accepted view. Reuvain did something. He fouled Shimon. That is hiziko, not huzku.

But These Were Glasses — Not A Tooth

Here is where the case turns back to Reuvain’s favor.

In Hilchos Chovel u’Mazik 6:3, the Rambam writes that when both parties were in a place they were entitled to be — or both equally were not — and one of them damaged the other’s property without intending to, he is patur – exempt. Property, not body. The Rosh’s wrestler blinded an eye. Shimon lost a pair of glasses.

The Mishna in Bava Kamma (3:1, 27a) points the same way. A person who leaves a jug in a public street, and someone else trips over it and smashes it, collects nothing. Bringing something fragile into a place where it is likely to be broken is a decision, and the consequences belong to the one who made it.

Sports goggles aka RecSpecs – exist for a reason.

Everyone knows what a basketball court does to a pair of regular frames.

Every exemption above rests on mechila — on what the players accepted when they stepped onto the court. Which raises the obvious question: what exactly did they accept? Basketball answers that question itself, in writing.

The flagrant foul is not ancient. It entered the NBA only in the 1980–81 season, and at first it was treated almost exactly like an ordinary personal foul — the single difference being that the coach of the fouled team got to pick which player would shoot the free throws. Not until 1990–91 did the fouled team also keep the ball afterward.

Today the league recognizes two levels. A Flagrant 1 is unnecessary contact against an opponent. A Flagrant 2 is unnecessary and excessive contact. A Flagrant 2 gets the player ejected on the spot. A Flagrant 1 does not, unless the same player does it a second time in the same game. The NBA itself compares the two to a yellow card and a red card. Players carry penalty points — one for a Flagrant 1, two for a Flagrant 2 — and enough of them triggers an automatic suspension, with a far shorter fuse in the playoffs. Since 2006–07, every Flagrant 2 is reviewed on instant replay and can be downgraded.

The Rema (Choshen Mishpat 378:9), following the Terumas HaDeshen, exempts damage caused during the customary rejoicing at a chasuna, mipnei shekach nahagu — because that is simply what people do. The accepted practice of an activity sets the terms of what its participants forgave.

There is one more wrinkle. Nowadays in pro basketball – it is accepted basketball strategy for a trailing team to foul on purpose late in a game, in order to stop the clock and get the ball back. Coaches call for it out loud. Everyone in the gym knows it is coming.  The contact, however, is only the means, and it is meant to be as light as the tactic allows. Every player on the floor in the final minute expects it and plays accordingly. That is ada’ata d’hachi in its purest form. But the instant that foul becomes harder than the tactic requires, it stops being a strategy and becomes a Flagrant — and the exemption leaves with it.

All of this assumed both boys were past Bar Mitzvah. Had Reuvain been a katan, he would owe nothing under the letter of the law (Choshen Mishpat 424:8). Yet when such a child grows up, he ought to pay anyway — under v’asisa hayashar v’hatov, and lifnim mishuras hadin.

We see this from Rav Ashi, who had burned someone’s document as a child, and whom Rafram later held to account for it (Bava Kamma 98b).

The author can be reached at [email protected] Written l’zaicher nishmas the author’s mother whose yartzeit is today, 22 Av. May her neshama have an aliyah.