Hilchot Nizkei Mamon - Chapter 14

Without permission.

This is considered as one of the 613 mitzvot of the Torah by Sefer HaMitzvot (positive commandments 241) and Sefer HaChinuch (Mitzvah 56).
As the Tur and the Ramah (Choshen Mishpat 418:2) point out, this applies even when the person took the precautions mentioned in the following halachot. Since he kindled a fire on his colleague’s property without permission, he must bear the consequences.

As the Rambam states in Halachah 16, a major category has derivatives. The derivatives of fire are any asset that one owns that is transported further by the wind and causes damage.

This communicates a fundamental principle. Although he is acting within his own domain, a person must take the necessary precautions to ensure that he will not cause damage to another person’s property.

I.e., the higher the fire, the further he must retreat.

The Hebrew wording used by the Rambam leads to the inference that a stream or irrigation ditch that is dried out is not considered to be a sufficient fire barrier.

For it is not usual for a fire to spread across a body of water that size.

Or wood. The Hebrew term used by the Rambam could be translated either way. The intent is combustible fuel.

Here too, the assessment is simple. The higher the flame, the higher the fence must must be.

We find this term in Deuteronomy 32:22: “There is a piercing fire in My nostrils.” From the commentary of Rabbenu Chanan’el (Bava Kama 61a), it appears that the intent is a very hot fire that burns powerfully, but does not produce a high flame.

When a flame is this high, there are no limits to the extent the fire may spread.

I.e., he kindled a fire, and the flame flew out of control.

Had the wall not fallen, it would ordinarily have been considered sufficient to impede the spread of the fire. If the fire was so great that it toppled the wall, the person would be liable for the damages the fire caused. In the instance at hand, however, the question is: Is he held responsible for the damages the fire caused, because he could have rebuilt the wall and thus prevented the fire from spreading.

The comparison is taken from (Bava Kama 23a).

I.e., the ox was placed in a corral that was not securely locked. (See Chapter 4, Halachah 1.)

These three individuals are not liable, because their incompetence causes them to be freed of responsibility for their conduct. The person who gave them the fire is not held liable, for he did not set the fire himself.

For he is an indirect cause of the damage.

In this instance, he is considered a direct cause of the damage.

This follows the principle “When a student’s (the principal who charged the agent with causing damage) words conflict with a master’s (God’s, who forbade causing damage), whose words should be heeded?” Since the agent is mentally competent, he must accept responsibility for his conduct.

When he accepted the responsibility to guard the fire, he also accepted the liability if he failed to do so adequately. See Chapter 4, Halachah 4 and notes.

For were it not for the wood, the fire would not have spread.

Since the wood was already there, it is the person who kindled the fire who must accept responsibility.

Because it is the fanning that causes it to spread.

If, however, such winds are common, the persons who brought the wood and started the fire must accept responsibility. They should have taken this factor into consideration.
Note Maggid Mishneh and the gloss of Sefer Me’irat Einayim 418:9, who explain that the term “an uncommon wind” does not refer to a storm wind that rarely comes, but rather to a wind that is an infrequent and out-of-the-ordinary matter, but still a somewhat recurrent meteorological occurrence.

For without the wind’s influence, the fire would not have spread.
If, however, the wind is blowing at the time a person is involved with the fire, and he ignores the possible danger, he is held liable (Maggid Mishneh; Ramah, Choshen Mishpat 418:9).
The Ramah (based on the Tur) also maintains that if it is a common wind that caused the fire to spread, the last person who had anything to do with the fire is liable.

The Ra’avad objects to the Rambam’s statements, maintaining that the liability of the person who fanned the fire is dependent on the viability of his deeds. Were his fanning sufficient to have caused the fire to spread even if it had not been fanned by the wind, he is liable. If not, he is not held liable.
The Maggid Mishneh justifies the Rambam’s ruling, citing several interpretations by the Sages in Bava Kama 60a. He nevertheless questions the Rambam’s decision here, based on the Rambam’s own words in Hilchot Sh’chenim 11:1-2.
The Kessef Mishneh resolves this difficulty, explaining that in Hilchot Sh’chenim, the Rambam mentions a situation in which a person winnows grain in his own domain, but the wind carries the chaff outside his domain. There, even though an ordinary wind is involved, the person is not held liable. This appears to contradict the ruling here. Nevertheless, as the Rambam himself states in Hilchot Sh’chenim, had it not been for the wind, the chaff would never have caused damaged. In this instance, the person’s fanning of the fire would have caused it to spread sufficiently to cause damage.

Wood is consumed entirely by fire. Stone and earth are not consumed entirely. Nevertheless, a fire might cause them to deteriorate until they are no longer useful (or as useful as they had been). The liability for both these types of substances is alluded to in the verse the Rambam cites: “Thoms” are consumed entirely by flames (as are standing ;md bound grain, which the verse also mentions). Why does the verse also mention a field (for the liability for standing grain is mentioned explicitly)? To teach that even when the field is lying fallow, but its value deteriorates because it is charred, the person is held liable. See Bava Kama 60a.

Since it is the ordinary practice for such articles to be hidden in a grain heap, the person who kindled the fire should have considered this possibility. Therefore, he is liable for their destruction.

Since it is abnormal for such articles to be hidden in a grain heap, the person who kindled the fire is not held liable. As stated in the notes on the following halachah, the place taken by the utensils is considered as if filled with grain, and restitution for that must be made.

As in Halachah 1, since he kindled a fire in another person’s domain without permission, stricter rules apply.

Bava Kama 60a derives this law from the above verse, which mentions standing grain. It comments: “Just as standing grain is openly revealed, so too, [a person is liable only] for entities that are openly revealed.”
Note the Tur and Shulchan Aruch (Choshen Mishpat 418:13), which state that this applies in an instance where the fire would have been stopped by a wall, the wall fell for reasons not dependent on the fire, and the person had the opportunity to repair the wall. Although he is liable for the grain heap, he is not liable for the articles hidden in it.
The rationale is: If the fire were large enough to spread by itself, the person would be liable. If its spread was caused by factors not dependent on the person who kindled the fire - e.g., an abnormal wind - he is also not liable for the grain heap.

I.e., if the utensils took up a cubic foot of space, the person who kindled the fire must pay for a cubic foot of grain. This also applies with regard to a person who bums clothes or glassware hidden in a grain heap, as mentioned in the previous halachah.

The Rambam’s words are based on the Mishnah (Bava Kama 6:7). The Maggid Mishneh states that the intent is that the person is liable only for the kid. Since the kid is tied, it cannot flee. He is not liable for the servant, because the servant is mentally competent and should have fled.

He is not held liable financially for the death of the servant, because he is considered to have murdered him, and is liable for capital punishment for his death. Therefore, we follow the principle that a person who is liable for capital punishment (even when that sentence cannot be administered) is free of liability for monetary loss.
There is a question if he is liable for the loss of the kid in this instance even when a servant is not killed. Some explain that he is not liable, because the kid should have fled. Others explain that a kid is not of sufficient mental competence to know whether or not to flee (Maggid Mishneh). Significantly, these laws are not mentioned by the Tur and the Shulchan Aruch.

For he gave him permission to store grain in his domain, not utensils.

Wheat is more valuable than barley. Nevertheless, since in actuality it was barley that was burned, the person who kindled the fire is liable only for the barley.

In this instance, he is liable to pay him only for barley, because that is what he gave him permission to store.

This applies even if he was granted permission to make a heap of wheat. Since the person who kindled the fire saw only barley, he is liable only for that (Sefer Me’irat Einayim 418:20).

If he gave him permission to make a heap of barley, he is liable to pay him only for the barley. If he gave him permission to make a heap of wheat, he is liable to pay the value of the wheat that was actually burned, and the value of remainder of the barley (Sefer Me’irat Einayim 418:21).

I.e., all the personal goods the person claims.

Note the gloss of the Maggid Mishneh, which states that when it is supported by an oath, the claim of the house owner is accepted, not only when the person who kindled the fire is uncertain about the value of the articles in the home he destroyed, but even when he claims to be certain that they were not worth the money the house owner demands.

A Torah scroll (Hilchot Sh‘vuot 11 :8). In certain circumstances, tefillin are substituted for a Torah scroll (Ibid.: 12).

See Hilchot Chovel UMazik 7:17; Hilchot To’en V’Nit’an 1:2. (See also Hilchot Sh’vuot 11:6.)

I.e., that according to his standard of living, one might assume that he owns.

In that era, retail outlets were usually stalls in the public domain, rather than enclosed edifices. The flax protruded into the stall, where it caught fire from the shopkeeper’s oil lamp.

And caused the flax to protrude beyond the borders of the public domain and enter the confines of the shopkeeper’s stall.

If the animal stands still, there is more reason to hold the camel driver liable, for once the fire was kindled, he should move his beast to prevent it from spreading the blaze. Nevertheless, even when he does keep his animal moving, since he caused the fire to start, he is liable for all the damages.

This is considered an act of negligence on the part of the shopkeeper. For the camel drivers and wagon drivers in the public domain do not suspect that there are lamps hanging there.

Which we are commanded to place at the outside of our homes.

In and of themselves, the actions of the person who bent the grain were not sufficient to cause the fire to reach the grain; the influence of the wind was also necessary. Since the fire was spread by an uncommon wind, it is considered a factor beyond the person’s control, and he is not liable.

For had he not bent the grain, the fire would not have reached it, even though an uncommon wind was blowing. As mentioned in the notes on Halachah 7, if the uncommon wind was blowing at the time the person bent the grain toward the fire, he is liable.

The two examples are carefully chosen. Earth reduces the likelihood that the grain will be consumed by fire, while straw increases it. Nevertheless, in either case the same laws apply.

For he himself did not set the fire.

See Halachot 8 and 9.

See Hilchot Chovel UMazik, ch. 1, for a detailed explanation of these five categories of compensation.

This is the subject of a difference of opinion among our Sages (Bava Kama 22a). Rabbi Yochanan maintains, as the Rambam rules, that kindling a fire is regarded like shooting an arrow. Resh Lakish differs and maintains that a fire is regarded no differently from a person's cistern or his animals.
To explain Rabbi Yochanan's opinion: When a person shoots an arrow, he is considered to have caused damage with his person although the damage took place far from him. So too, when he kindles a fire, despite the fact that the damage occurs in a distant place, it is as if he caused the damage with his person.
Note the Maggid Mishneh, who points to an apparent contradiction in the Rambam’s rulings. For Rabbi Yochanan does not free a person of liability for articles that are buried. It is, however, possible to explain that the Rambam does not accept Rabbi Yochanan’s perspective blindly. He accepts it in this instance, but follows the other interpretations with regard to buried property.

Chapter 11, Halachah 6, and Chapter 13, Halachah 2.

The Shulchan Aruch (Choshen Mishpat 418:1) defines the derivatives of fire as referring to any property that one owns that is transported further by the wind and causes damage.

For just as a person is liable when an ordinary wind spreads a fire, so too, he is liable for any other damage his property causes that comes as a result of an ordinary wind.

Just as he is not liable when an uncommon wind causes a fire to spread (Halac. 7).