Bava Kamma, Chapter 6, Mishnah 4. The Mishnah now turns its attention to the last of the four primary categories of damage enumerated in the first Mishnah - the category of fire, or as the Mishnah terms it: Hev'er (fire). Its source is in the verse: "Ki seitzei eish umatza'ah kotzim vene'echal gadish o hakamah o hasadeh, shaleim yeshaleim hamav'ir et habe'erah" - fire that went out and found combustible material, thorns and the like, and consumed a stack of grain, standing grain attached to the ground or the field itself: the one who ignited the fire must pay the injured party.
The nature of fire as a primary category of damage:
"Darko leileich ulehazik" - by its nature, this is a moving phenomenon, which does not remain in the place where it was placed, but rather advances and causes damage while in motion.
The addition of another force - this does not involve a person or his property alone. Rav and Rabbi Yochanan disagree on this: some focus on the person, and this is the concept of "isho mishum chitzav" - fire as the person's arrows, acting through something else; and some hold "isho mishum mamono" - that fire is judged as his property. Either way, it involves something of his combined with an additional force mixed with it, and this is usually the wind that joins the dangerous element.
Therefore, a person who placed a knife on the edge of his balcony, and the wind blew it down and it struck the head of a passerby - this is judged under the law of fire, since we have a dangerous, damaging element before us, a knife resting on the edge of the balcony that is liable to be dislodged by a normal wind, and it is the wind that moved it and caused the damage.
"Hasholei'ach et habe'erah beyad cheresh, shoteh, vekatan" - one who sends the fire in the hands of a deaf-mute, imbecile, or minor:
The Mishnah, which is a long Mishnah, opens with someone who handed the fire to one of three people lacking legal competence: a deaf-mute who neither hears nor speaks, an imbecile who lacks mental competence, and a minor who has not reached the age of mitzvahs. He handed him the fire to transport it from one point to another, and along the way, a fire broke out. The law is "patur bedinei adam vechayav bedinei shamayim" - exempt by the laws of man and liable by the laws of Heaven.
The sender is exempt by the laws of man, meaning that earthly courts do not extract money from him; but he is liable by the laws of Heaven, which means that according to the law he truly owes the money, and it is not left to his choice. If he does not pay, it is as if he is robbing the injured party, but the court does not coerce him to pay, and the collection is done through a punishment from Heaven - a punishment he can prevent if he pays on his own initiative as is incumbent upon him.
The Gemara explains that this is not speaking of one who handed a minor an open flame on a stick and asked him to carry it to the other side of the street. Fire is dangerous, and a person is obligated to guard it so it does not cause damage, and handing an open flame to a minor, deaf-mute, or imbecile is not considered guarding it at all - and in such a case, the one who handed it over would be completely liable. The case in the Mishnah is when he handed over a glowing coal, which naturally fades and goes out on its own, and it is not its nature to ignite a fire unless a person fans it or adds air to it. The minor or the imbecile played with the fire - and children tend to do this - and caused it to flare up. Since he handed them something that was supposed to go out on its own, he bears only partial responsibility, and therefore he is liable by the laws of Heaven and not by the laws of man.
"Shalach beyad pikei'ach, hapikei'ach chayav" - if he sent it in the hands of a competent person, the competent person is liable:
If that glowing coal was handed to a competent person, and he ultimately caused a fire - the competent person is liable, since he should have been careful. And the sender is completely exempt, even by the laws of Heaven, whether the competent person is a watchman or an ordinary person.
Furthermore: Reuven who handed the coal to Shimon and said to him, "Take this over to the bonfire on the other side of the stream" - Shimon is liable if a fire breaks out, since he is a competent person. And even if Reuven said to him, "Take this fire and burn down Levi's house," and Shimon did so - Shimon is liable, not Reuven. Even if Reuven coerced him, with a threat to beat him or a promise of money, it means nothing, since Shimon is a competent person, possesses free will, and is responsible for his actions. The reason is the fundamental rule: ein shaliach lidevar aveirah - there is no agent for a sin - a person cannot act as the agent and representative of another to commit a sin and do something the Torah has forbidden, and therefore he bears full responsibility. We are not speaking of duress, such as Reuven holding a gun to Shimon's head; and since this is not duress, even coercion of pain or money does not work, and the perpetrator cannot say that he acted on behalf of another.
The foundation of the matter is in the rule that the Gemara formulates: "Divrei harav vedivrei hatalmid, divrei mi shom'in" - between the words of the Master and the words of the student, whose words does one obey? When two contradictory instructions stand against each other, who is it that one must obey? Reuven said to Shimon, "I will give you money if you burn down the house of my neighbor Levi," and the Holy One, blessed is He, said, "You are forbidden to do this." Reuven is the student, the servant of the Holy One, blessed is He, while the Master is the Holy One, blessed is He, Himself - and it is obvious that Shimon must obey the words of the Master and not the words of the student. Therefore, if he obeyed Reuven's instruction and caused damage, Shimon bears full responsibility since he possesses free will, and Reuven pays nothing.
An addition to this matter: If Shimon cannot afford to pay, Reuven is liable by the laws of Heaven, since he caused it. However, with a deaf-mute, deranged person, or minor, we do not say this, because the rule of "the words of the Master and the words of the student" does not apply to them - for it is impossible to say about someone who is exempt from the mitzvos due to a lack of mental competence that he is obligated to listen to the voice of the Holy One, blessed is He. Therefore, they do not bear responsibility, and it shifts directly to the sender, at least by the laws of Heaven.
Two Who Participated in the Ignition:
What is the law when two people were involved in preparing a fire, but its spreading was caused by only one of them? The Mishnah establishes that the responsibility is placed on the second one alone, since without his action, nothing would have happened:
"Echad hevi es ha'or v'echad hevi es ha'eitzim - hamevi es ha'eitzim chayav" - Reuven placed a small fire in a pit, a fire that would have gone out on its own, and Shimon came and added combustible material to it, and the fire spread and caused damage. Reuven's actions alone would have led to nothing, and therefore Shimon is liable.
"Echad hevi es ha'eitzim v'echad hevi es ha'or - hamevi es ha'or chayav" - The first piled up a stack of wood, which in itself poses no danger, and the second came and ignited it, and the fire spread and caused damage. The second alone is responsible for the damage, since without him nothing would have happened.
"Ba acher velibah - hamelabeh chayav" - Reuven and Shimon's bonfire died down naturally, and the flames went out leaving only glowing coals, and a third person came and fanned the coals into a flame. The one who fanned it is liable, since without him the fire would not have spread but would have gone out on its own.
"Libasah haruach - peturin" - Glowing coals remained that did not have water poured on them, but there is no reason to assume the fire will spread, and an unusual wind came - an atypical wind that cannot be expected under normal circumstances - and fanned the fire. Everyone is exempt, for they acted responsibly and left the coals in a state where they could not reasonably be expected to spread.
Superior Safeguarding and Inferior Safeguarding:
The two levels of safeguarding that we learned arise here again. For Keren, the Torah requires a high level, a superior safeguarding, and there is a disagreement regarding a Mu'ad whether an inferior safeguarding suffices for it; whereas for Shein and Regel, an inferior safeguarding suffices, merely a basic safeguarding. With animals, an inferior safeguarding involves locking the gate properly or tying the animal with a leather strap, whereas a superior safeguarding, the maximum protection, involves a gate that can withstand even a storm, or an unbreakable metal chain tying the animal to the wall.
For fire as well, the Torah requires only an inferior safeguarding, a basic level of responsibility, to be exempt from the damages of its spreading. For the verse states "shaleim yeshaleim hamav'ir es habe'eirah" - the liability is conditional on the person acting in a way that is equivalent to igniting the fire with his own hands. But if he left the fire in a state where it would naturally go out on its own, this is an inferior safeguarding, and it is sufficient to be exempt from responsibility.
"Hasholei'ach es habe'eirah" - One Who Ignites on His Property:
Here the Mishnah opens a new topic with the words "hasholei'ach es habe'eirah" - the same three words with which the Mishnah opened. Except that in the first clause, the intention is agency, handing the fire over to a person who transfers it from place to place, whereas here the intention is a person who lit a fire on his property and it spread. It must be clarified: the base case is a person lighting a fire on his own property. One who ignites a fire on his fellow's property and sets his house ablaze is absolutely liable under the law of a person who causes damage. Our Mishnah deals with someone who lit the fire permissibly, on his private property, as he is allowed to do, except that the fire spread - and the entire question is whether he acted irresponsibly, in which case he would be liable for the fire's damages.
The language of the Mishnah: "Hasholei'ach es habe'eirah v'achlah eitzim o avanim o afar - chayav, shene'emar: Ki seitzei eish umatz'ah kotzim vene'echal gadish o hakamah o hasadeh, shaleim yeshaleim hamav'ir es habe'eirah" - A person lit a fire on his property, the wind spread it to his fellow's property and it caused damage there - he is liable, because he allowed it to spread and acted irresponsibly.
The novelty in the exegesis is in the word "hasadeh" - the field itself. The entire verse uses the term "vene'echal", which implies destruction; and eating throughout the Torah means the destruction and finishing of the thing, whether in the throat or by burning in fire. But when the fire blackens the ground or the walls, this is not a literal consumption, for the walls and the ground remain in their place and are merely degraded by the heat of the fire. The exegesis comes and teaches that the one who ignites it is liable even for this type of damage. And this is also the language of our Mishnah: if it damaged stones, such as if they were blackened and one must spend money to clean them, or dust - how is dust damaged by fire? For example, if a person plowed his field and it is ready for sowing, and a fire passed through it and hardened the surface of the earth like a crust, and it turns out that he must plow again, and by the time he does so, the planting season has passed. This damage is imposed on the one who lit the fire in his field and allowed it to spread.
Partitions that Block the Fire:
The Mishnah lists situations which offer a defense for the one who lit the fire: things that fire is not expected to cross, and if it did cross - this is not irresponsible behavior and the one who lit it is exempt. The language of the Mishnah: "Avarah gader gevohah arba amos o derech harabim o nahar - patur" - if it crossed a fence four amos high, or a public road, or a river, he is exempt:
"Gader gevohah arba amos" - a fence four amos high. The fence in the Mishnah is not a wooden fence but a stone wall, serving as a fence. The Gemara clarifies that this means four amos (about two meters) above the level of the burning wood, and assuming that on its other side there are no tall thorns that easily catch fire, but rather they are at least four amos lower than it. In such a situation, there is no reason for the fire to cross under normal circumstances, and if it crossed - he is exempt.
"O derech harabim" - or a public road. A wide street, sixteen amos, which is the measure of a public domain derived from the Mishkan and the wagons that would travel in it, which is about eight meters. This is a good fire barrier, and one would not expect a fire to jump over it, and if it crossed, it is considered an unavoidable accident and the one who lit it is exempt.
"O nahar" - or a river. A river dividing his property from his fellow's property. The Gemara lists two characteristics for it: that it has water, and that its width is eight amos (about four meters). The Rambam learned that both conditions are required together, whereas other Rishonim learned that each one alone is sufficient to serve as a boundary that fire is not expected to cross.
The Measure of the Fire's Spread:
Even in the absence of one of these partitions, one would not expect a fire to continue burning indefinitely under normal circumstances. So how much distance must be left between the fire on his property and his fellow's property? There are four opinions regarding this, as the language of the Mishnah states: "Hamadlik besoch shelo, ad kamah taavor hadeleikah" - one who lights a fire on his own property, how far will the fire travel:
Rabbi Elazar ben Azariah says: "Ro'in oso ke'ilu hu be'emtza beis kor" - we view it as if it is in the middle of a beis kor. We must imagine that the fire is placed in the middle of a beis kor, which is approximately the largest area mentioned by the Sages. A beis kor is thirty beis se'ah, and one beis se'ah is 2,500 square amos, meaning its area is 75,000 square amos, which is 274 amos per side. One standing in its center is 137 amos from each edge, which means the fire must be kept 137 amos away from the neighbor's property. Roughly speaking, a beis kor can be compared to an area the size of a soccer field, and perhaps slightly less, just to give an idea of the magnitude.
Rabbi Eliezer says: "Shesh esreh amos kederech reshus harabim" - sixteen amos like a public domain. Just as the width of a public domain is sixteen amos, this distance is sufficient, about eight meters, and this is not a large distance.
Rabbi Akiva says: "Chamishim amah" - fifty amos. This is the distance up to which the fire is expected to spread.
Rabbi Shimon says: "Shalem yeshalem hamavir es habe'erah - hakol lefi hadeleikah" - the one who lit the fire shall surely pay, everything depends on the fire. The extra words "es habe'erah" come to teach that every fire is different from another. The matter depends on the type of ground cover, the size and width of the fire, the strength of the wind, the level of heat outside, the dryness of the conditions, and the like, and therefore it is impossible to establish a uniform safety distance for all cases.
According to the Rambam, even the exemptions listed earlier - the fence, the public road, and the river - do not necessarily apply. A person has a duty to act responsibly with his fire, and if it could be reasonably expected that the fire would spread a great distance or cross over fences and rivers due to the conditions - he is liable. We do not have a sweeping rule and automatic exemption establishing how far a fire is expected to spread.
Practical Halachah: The halachah follows Rabbi Shimon, and so ruled the Rambam and the Shulchan Aruch. Thus, even though the Torah only requires a lesser level of guarding, a basic guarding, for fire, a person has a duty to act responsibly with his fire. And whenever he did an action about which any reasonable person would say that it is liable to get out of control and cause damage, and indeed that is what occurred - the one who lit it bears full liability.