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Week 94 - Friday - 14 September 2001

BAVA KAMMA: CHAPTER 6: MISHNAH 4

If a person sends fire by a deaf-mute, a mental deficient, or a minor, he is exempt by the laws of man and liable by the laws of heaven. If he sent by a normal person, the normal person is liable. If one brought the flame, and one brought the wood, the one who brings the wood is liable. If one brought the wood, and one brought the flame, the one who brought the flame is liable. If another came and inflamed it, the one who inflames is liable. If the wind inflamed it, all of them are exempt. If one started a fire and it consumed wood, or stones, or earth, he is liable, as it is written, “If fire breaks out or spreads to thorns, and consumes stacked corn, standing corn, or the field, the one who kindled the fire shall surely make restitution” (Ex. 22:5). If it passed over a fence four cubits high, or a public way, or a river, he is exempt. If he kindles within his own, how far may the fire spread? Rabbi Eleazar ben Azariah says, we consider it as though it were in the center of the area of a kor. Rabbi Eliezer says, Sixteen cubits, like a public way. Rabbi Akiva says, Fifty cubits. Rabbi Shimon says, "The one who kindled the fire shall surely make restitution," everything is according to the fire.

Kehati

The mishnayot from here to the end of our chapter deal with the laws of damage caused by fire.

If a person sends fire by a deaf-mute, a mental deficient, or a minor - and these ignited his fellow's property, he - the sender - is exempt by the laws of man - since the law of agency does not apply to a deaf-mute, a mental deficient, or a minor and liable by the laws of heaven - the Gemara explains that the mishnah teaches that he is exempt by the laws of man only in a case where he gave them a coal, which they fanned ablaze, since a coal normally goes out by itself, and the sender did not have to think that perhaps they would fan it alive. If, however, he gave them a flame, he is liable, for his action caused the damage.

If he sent - the fire - by a normal person - and he ignited his fellow's property, such a one is liable - for payment of the damage, while the sender is exempt, even by the laws of heaven. The rule that a person's agent is regarded as the person himself does not apply here, since there is no agent for a transgression (se Kidd. 42b).

If one brought the flame, and - afterwards - one brought the wood - and ignited it with the flame, and this spread and caused damage, the one who brings the wood is liable - for if he had not brought the wood, the flame would have gone out by itself and would not have caused damage.

If one brought the wood - first, and - afterwards - one brought the flame - and ignited the wood, the one who brought the flame is liable - since he started the fire.

If another came and inflamed - fanned the fire into a blaze, the one who inflames is liable - while the first two are exempt.

If the wind inflamed - the fire, all of them are exempt - only in the case of an abnormal wind, which appears at infrequent intervals. In the case of a normal wind, however, the last one is liable, since fire spreads in a normal wind, and he was obligated to be wary and guard the fire so that it would not spread and cause damage (Tosafot Yerushalmi).

If one started a fire and it consumed - burned another's - wood - or stones, or earth - i.e. it lapped his fellow's plowed field, he is liable - to pay full damages, as it is written, "If fire breaks out or spreads to thorns, and consumes stacked corn, standing corn, or the field, the one who kindled the fire shall surely make restitution" - the phrase "or the field" refers to the field itself, i.e., the plowed earth and the stones.

If it - the fire - passed over a fence four cubits high - above the burning wood (Tosafot), or above the thorns on the other side of the fence (Gemara), i.e., he ignited the fire within his own domain and did not guard it so that it would not spread outside his domain, but a wall four cubits high separated the place of the fire from his fellow's field, or a public way - sixteen cubits wide, or a river -which is eight cubits wide (baraita), he is exempt - since this is a circumstance beyond his control, and does not normally occur.

If he kindles within his own - in a place where there is no divider (Tosefot Yom Tov), how far may the fire spread - with him being liable? Rabbi Eleazar ben Azariah says, we consider it as though it were in the center of- a field - the area of a kor- the area in which 30 se'ah are planted, i.e., approximately 274 cubits by 274 cubits (7,500 square cubits). When the fire is located in the middle of the field, there is an area with a radius of approximately 137 cubits around it; if the fire spreads beyond this limit, he is exempt.

Rabbi Eliezer says, Sixteen cubits - radius, like a public way - as was taught above: if the fire passes over a public way, he is exempt. Rabbi Akiva says, Fifty cubits - radius. Rabbi Shimon says, "The one who kindled the fire shall surely make restitution," everything is according to - the height and measure of - the fire - since if the fire is a large one, it will spread further, even than the distances mentioned above and in such a case, he is liable. The law is in accordance with Rabbi Shimon (Rambam, Hil. Nizekei Mamon 14:2).

BAVA KAMMA: CHAPTER 6: MISHNAH 5

If a person ignites a stack of sheaves and there were utensils within it and they burnt -Rabbi Yehudah says, He pays what was in it. And the Sages say, he pays only a stack of wheat or barley. If a kid was tied to it and a bondman near it, and was burnt with it, he is liable. If a bondman was tied to it or a kid near it, and was burned with it, he is exempt. And the Sages agree with Rabbi Yehudah that if a person set fire to a building, he pays everything that is in it, for it is normal for people to leave in houses.

Kehati

If a person ignites - within his own domain and the fire spread and burned - a stack of sheaves - belonging to his fellow, and there were utensils - hidden - within it - the stack, and - the utensils also - burnt, Rabbi Yehudah says, He - is liable and also - pays - for the utensils which were concealed - in it - the stack;

And the Sages say, he - is liable to pay only a stack of wheat or barley - i.e. for that which is in the open, and not for the utensils concealed there, as it is written, "and consumes stacked corn, [or] standing corn" (Ex. 22:5), from which it was learned, just as standing corn is in the open, so the law of payments of damages by fire applies to what is in the open, but not to concealed objects. Tosafot and Rabbeinu Asher explain that Rabbi Yehudah and the Sages disagree both when the utensils buried in the stack were such as are normally concealed within it, e.g. tools for threshing and plowing, or whether they are such as are not normally hidden within it, such as a purse. Rabbi Yehudah holds that he is liable even for utensils which are not normally hidden, while the Sages hold that he is exempt even for utensils which normally are hidden, this by Torah decree, as was explained above. The Sages exempted him only for the utensils themselves, but obligated him for the space occupied by them, i.e., they regard the space occupied by the utensils as if it were filled with grain from the same type of stacked sheaves.

If a kid were tied to it - the stack, and could not escape, and a bondman was near it - but was not bound, and therefore could have escaped, but he was burnt with it - the stacked sheaves, he is liable - to pay for the stack of sheaves and for the kid, but he is exempt regarding the bondman, since he could have escaped.

But - If a bondman were tied to - the stack of sheaves - or a kid - were - near - the stack, and could have escaped, but it was burned with it - the stack, he is exempt - since he is liable to the death penalty for the bondman, he is exempt from making payment for the stack; and if the kid were near the stack of sheaves, he is exempt for the kid, since it could have escaped. According to other commentators, the previous case, “if a kid were tied to it,” does not refer only to a case of actual tying, but also to a case in which the kid was near the stack; in either case, he is liable, since the kid does not have the intelligence necessary to escape; the latter case, "or a kid near it," was cited in the mishnah only because of the prior case: since the prior section mentioned a bound kid and a nearby bondman, the latter case refers to a bound bondman and a nearby kid, but there never is any difference regarding a kid, whether bound or not.

And the Sages agree with Rabbi Yehudah that if a person set fire to a building - the house of his fellow, that he pays everything that is in it, for it is normal for people to leave - utensils and money - in houses - the Gemara deduces from our mishnah, that even in the case where a person kindles a fire within his fellow's domain and the fire spread and burned his stack of sheaves and the utensils within the stack, Rabbi Yehudah and the Sages disagree: Rabbi Yehudah holds that he pays for everything which was in it, while the Sages hold that he is liable for the utensils which are normally concealed within the stack of sheaves, but is exempt from paying for utensils which are not normally concealed there, since he is not expected to think that a person might put utensils where they are not normally placed (Tosafot). Ramban and Yam shel Shlomo interpret the Sages' opinion to the effect that only in the case of a person who ignites the fire within his fellow's domain and the fire passed over to an other place of its own accord and caused damage, when he is only negligent and not an actual damager, is he liable only for the utensils which are normally concealed there. When, however, a person ignited his fellow's stack with his own hands, he is liable for everything, even for utensils, which are not normally concealed there.

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