Q&A: Proof from Bartenura that there is no prohibition against causing damage?
Proof from Bartenura that there is no prohibition against causing damage?
Question
The Mishnah in Bava Batra, chapter 3, mishnah 8, says: “One may not make a cavity beneath the public domain.”
And Bartenura there explains: “Even if he accepts upon himself all the damage that may come because of it, because people do not want to have to secure themselves and go to court over their property.”
And seemingly, it is difficult: why didn’t he explain more simply that even if he is obligated to pay, there is still a prohibition against causing damage?
Answer
It seems to me that this is because in this particular case there is no prohibition according to any view. See the wording of Maimonides and the Shulchan Arukh, that one may not make a cavity even though a wagon is able to travel over it. This is similar to the example in Bava Kamma 6a regarding opening one’s drains, which is something permitted to do (during the rainy season), but if they cause damage one is liable to pay. But one cannot infer from here that there is no prohibition against causing damage in general.