[Avodah] Maakeh

[Jacob Farkas]

>  > > Thus, if it were a yachid's store rather than a shul that had the 
> platform,
>  > > it would require a maakah. Even if people didn't normally walk on that
>  > > platform.
>  > >
>  >> > > Other things, such as scary dogs and deep pits,
>  >> > > necessitate preventative measures (not necessarily a 10 tefachim 
> fence),
>  >> > > only when they are subjectively considered dangerous.
>  > >
>  > > Midin maakah, or midin bor bereshus harabbim?
> 

R' Michael Kopinsky wrote:
> Midin maakeh.  The continuation of the pasuk says, "v'lo Sasim Damim
> b'veisecha ki yipol hanofeil mimenu."  The chinuch there also lists there
> all the halachos of shmiras haguf (mayim megulim, etc.). From my
> understanding, Bor birshus harabim is not an issur, but rather a Choshen
> Mishpat-dikke chiyuv to pay damages.  (In general, hilchos nezikin is
> monetary chiyuvim not prohibitions to damage your friend's property.  I
> believe there's piece in Kehillos Yaakov (maybe Baba Kama siman 1) where
> he says the issur of damaging your friend's stuff is lo sigzol.)

Actually the Steipler held that the Issur Hezeq is Lo Sukhal Lehisaleim 
(The lo sa'asei of Hashavas Aveidah). The Torah obligated people to save 
someone else's property from being lost, even in a scenario where that 
person did not actively cause the potential loss. This Issur includes 
actively destroying another's property.

Digging a Bor Bereshus harabim is absolutely an Issur, the Mahloqes 
Aharonim is wether it is an Issur Torah, or Issur Derabanan. The Meshekh 
Hakhmah (Vayiqra 19:14) held it was V'lifnei Iveir, the Steipler quotes 
the MH's Sevara as a source to Biur HaGRA who held that Hezeq is an 
Issur Torah, he also quotes Yad Remah in Bava Basra 26a who held that in 
addition to V'lifnei Iveir there is also a breach in V'ahavta L'reiakha 
kamokha. The Mishnah L'melekh, quoted in Qehillos Ya'aqov Bava Kama 1, 
held that digging a Bor Bereshus Harabim is only miderabanan, the issur 
being destruction of public property.

Torts laws are about damages, who is liable and how much, but Hezeq 
alone [with full intention of restitution] is still forbidden.

--Jacob Farkas