ב"ה

Rambam - 1 Chapter a Day

Hilchot Nizkei Mamon - Chapter Fourteen

Show content in:

Hilchot Nizkei Mamon - Chapter Fourteen

1

When a person kindles a fire in a field belonging to someone else1 and the fire spreads and causes damage, [the person who kindled it] is liable to pay the full extent of the damages,2 as [Exodus 22:5] states: "When a fire spreads through thorns and consumes bound or standing grain..., [the one who started the fire] must pay." Kindling a fire is considered one of the major categories of sources of damage.3

א

הַמַּדְלִיק בְּתוֹךְ שְׂדֵה חֲבִרוֹ וְעָבְרָה הַדְּלֵקָה [וְהִזִּיקָה] חַיָּב לְשַׁלֵּם נֵזֶק שָׁלֵם שֶׁנֶּאֱמַר (שמות כב ה) "כִּי תֵצֵא אֵשׁ וּמָצְאָה קֹצִים וְנֶאֱכַל גָּדִישׁ אוֹ הַקָּמָה" וְגוֹ' שַׁלֵּם יְשַׁלֵּם הַמַּבְעִר וְגוֹ'. וְהַבְּעֵרָה מֵאֲבוֹת נְזִיקִין הִיא:

2

When a person kindles [a fire] on his own property, he must retreat a sufficient distance from his boundary to ensure that the fire will not spread to a field belonging to a colleague.4 How far must he move? Everything depends on the height of the fire.5 If he did not retreat an adequate distance and the fire spread and caused damage, he is liable to pay the full extent of the damages. If he retreated an appropriate distance, and [the fire] nevertheless spread and caused damage, he is not liable. This is considered an act of heaven. Similarly, if [the fire] crossed a stream6 or a pond of rainwater that was [at least] eight cubits wide, [the person who kindled the fire] is not liable.7

ב

הִדְלִיק בְּתוֹךְ רְשׁוּתוֹ צָרִיךְ לְהַרְחִיק מִסּוֹף הַמֵּצַר כְּדֵי שֶׁלֹּא תַּעֲבֹר הַדְּלֵקָה לִשְׂדֵה חֲבֵרוֹ. וְכַמָּה שִׁעוּר הַהַרְחָקָה הַכּל לְפִי גֹּבַהּ הַדְּלֵקָה. וְאִם לֹא הִרְחִיק כָּרָאוּי וְעָבְרָה הָאֵשׁ וְהִזִּיקָה חַיָּב לְשַׁלֵּם נֵזֶק שָׁלֵם. הִרְחִיק כָּרָאוּי וְעָבְרָה וְהִזִּיקָה פָּטוּר שֶׁזּוֹ מַכָּה בִּידֵי שָׁמַיִם הִיא. וְכֵן אִם עָבְרָה נָהָר אוֹ שְׁלוּלִית שֶׁיֵּשׁ בָּהֶן מַיִם וְרָחְבָּן שְׁמוֹנֶה אַמּוֹת פָּטוּר:

3

If the fire passed a wall, we measure the height of the wall and the height of the fire and the amount of foliage8 and bramble found there.9 If the fire was not of sufficient size to pass the wall ordinarily, he is not liable. If it is large enough, he is liable. When does the above apply? To a piercing flame].10 If, however, the flame ascends upward and warps downward because of the height of the flame, and there were trees11 there, we do not make an estimation. Even if the fire spread for 1000 cubits, [the person who kindled it] is liable.12

ג

עָבְרָה גָּדֵר אוֹמְדִין גֹּבַהּ הַגָּדֵר וְגֹבַהּ הַדְּלֵקָה וְהָעֵצִים אוֹ הַקּוֹצִים הַמְּצוּיִין שָׁם אִם אֵינָהּ רְאוּיָה לַעֲבֹר פָּטוּר וְאִם רְאוּיָה לַעֲבֹר חַיָּב. בַּמֶּה דְּבָרִים אֲמוּרִים בְּאֵשׁ הַקּוֹדַחַת. אֲבָל אִם הָיָה לָהּ לַהַב גָּדוֹל הָעוֹלֶה וְנִכְפָּף מִגֹּבַהּ עֲלִיַּת הַלַּהַב וְהָיוּ עֵצִים מְצוּיִין שָׁם אֵין לָהּ אֹמֶד אֶלָּא אֲפִלּוּ עָבְרָה אֶלֶף אַמָּה חַיָּב:

4

[The following rules apply when] a fire breaks out in a person's domain,13 and his wall falls from causes other than the fire.14 If he had had the opportunity to rebuild the wall that fell, and he neglected to do so, he is liable. To what can the matter be compared?15 To a person's ox that broke loose16 and caused damage. For [the owner] was responsible for guarding him, and he failed to do so.

ד

נָפְלָה דְּלֵקָה בַּחֲצֵרוֹ וְנָפַל גָּדֵר שֶׁלֹּא מֵחֲמַת הַדְּלֵקָה וְעָבְרָה הַדְּלֵקָה בְּחָצֵר אַחֶרֶת. אִם הָיָה יָכוֹל לִגְדֹּר הַגָּדֵר שֶׁנָּפַל וְלֹא גְּדָרוֹ חַיָּב. לְמָה הַדָּבָר דּוֹמֶה לְשׁוֹרוֹ שֶׁיָּצָא וְהִזִּיק שֶׁהָיָה לוֹ לְשָׁמְרוֹ וְלֹא שְׁמָרוֹ:

5

A person who sends a fire in the hands of a deaf mute, a mentally incompetent person or a child is not held liable by an earthly court;17 he does, however, have a moral and a spiritual obligation [to make restitution for the damages].18 When does the above apply? When he gave them a coal and they fanned it into a flame, for it is normal for a coal to burn out before it causes a flame. If, however, [the person] gave them a flame, he is liable, for his deeds caused the damage.19

ה

הַשּׁוֹלֵחַ אֶת הַבְּעֵרָה בְּיַד חֵרֵשׁ שׁוֹטֶה וְקָטָן פָּטוּר מִדִּינֵי אָדָם וְחַיָּב בְּדִינֵי שָׁמַיִם. בַּמֶּה דְּבָרִים אֲמוּרִים שֶׁמָּסַר לָהֶן גַּחֶלֶת וְלִבּוּהָ שֶׁדֶּרֶךְ הַגַּחֶלֶת לְהִכָּבוֹת מֵאֵלֶיהָ קֹדֶם שֶׁתַּעֲבֹר וְתַדְלִיק. אֲבָל אִם מָסַר לָהֶן שַׁלְהֶבֶת חַיָּב שֶׁהֲרֵי מַעֲשָׂיו גָּרְמוּ:

6

When a person sends a fire with a mentally competent individual, the agent who spread the flame is liable, and the principal is free of liability.20 Similarly, if he charged a watchman with guarding a fire, [and the fire nevertheless caused damage,] the watchman is liable.21

ו

שָׁלַח אֶת הַבְּעֵרָה בְּיַד פִּקֵּחַ זֶה הַפִּקֵּחַ שֶׁהִבְעִיר חַיָּב לְשַׁלֵּם וְהַשּׁוֹלֵחַ פָּטוּר. וְכֵן אִם הִנִּיחַ שׁוֹמֵר לִשְׁמֹר הַבְּעֵרָה הַשּׁוֹמֵר חַיָּב:

7

When one person brings a flame, and [then] another person brings the wood, [and a fire is started, which causes damage], the person who brought the wood is liable.22 When one person brings the wood, and [then] another person brings a flame, [and a fire is started, which causes damage,] the person who brought the flame is liable.23 If another person comes and fans the fire, he is liable.24 If the fire is fanned by an uncommon wind,25 none of them is held liable.26 If a person fanned a fire, but it was also fanned by the wind, the person is liable, for his [actions] caused damage.27 And whenever a person's [actions] cause damage, he is liable to pay for the full amount of the damages from the choicest property he owns, as if the damage was inflicted directly.

ז

אֶחָד הֵבִיא אֶת הָאוּר וְאֶחָד הֵבִיא אֶת הָעֵצִים הַמֵּבִיא אֶת הָעֵצִים חַיָּב. אֶחָד הֵבִיא אֶת הָעֵצִים וְאֶחָד הֵבִיא אֶת הָאוּר הַמֵּבִיא אֶת הָאוּר חַיָּב. בָּא אַחֵר וְלִבָּהּ הַמְלַבֶּה חַיָּב. לִבַּתּוּ רוּחַ שֶׁאֵינָהּ מְצוּיָה תָּמִיד הֲרֵי כֻּלָּן פְּטוּרִין. לִבָּה וְלִבַּתּוּ הָרוּחַ חַיָּב שֶׁהֲרֵי הוּא גָּרַם וְכָל הַגּוֹרֵם לְהַזִּיק מְשַׁלֵּם נֵזֶק שָׁלֵם מִן הַיָּפֶה שֶׁבַּנְּכָסִים כִּשְׁאָר כָּל הַמַּזִּיקִין:

8

When a fire spread and consumed wood, stone or earth,28 [the person who kindled the fire] is obligated to make restitution, as it is written: "[When a fire] spreads through thorns [and consumes...] a field." [The following rules apply when] a fire consumes a grain heap or the like and there were utensils hidden in the grain heap. If [the utensils include] a thresher, a yoke for cattle or other articles that it is likely for farmers to hide in their grain heaps, [the person who kindled the fire] is liable.29 If [the utensils include] clothes, glassware and the like, he is not liable for the damage to the utensils.30

ח

אֵשׁ שֶׁיָּצְאָה וְאָכְלָה עֵצִים אוֹ אֲבָנִים אוֹ עָפָר חַיָּב לְשַׁלֵּם שֶׁנֶּאֱמַר (שמות כב ה) "וּמָצְאָה קֹצִים" כוּ' (שמות כב ה) "אוֹ הַשָּׂדֶה". אָכְלָה גָּדִישׁ וְכַיּוֹצֵא בּוֹ וְהָיוּ כֵּלִים טְמוּנִים בְּתוֹךְ הַגָּדִישׁ אִם הָיוּ כְּגוֹן מוֹרִיגִים וּכְלֵי בָּקָר וְכַיּוֹצֵא בָּהֶן מִדְּבָרִים שֶׁדֶּרֶךְ אַנְשֵׁי הַשָּׂדֶה לְטָמְנָם בַּגָּדִישׁ חַיָּב לְשַׁלֵּם. הָיוּ בְּגָדִים וּכְלֵי זְכוּכִית וְכַיּוֹצֵא בָּהֶן פָּטוּר עַל הַכֵּלִים:

9

When does the above apply? When a person kindles a fire in a field belonging to a colleague.31 If, however, he kindles the fire in his own [domain] and it spreads to a colleague's field, he is not liable for utensils hidden in a grain heap.32 He must, however, compensate [the owner] as if the space taken by the utensils had been filled with wheat or with barley.33

ט

בַּמֶּה דְּבָרִים אֲמוּרִים בְּמַדְלִיק בְּתוֹךְ שְׂדֵה חֲבֵרוֹ. אֲבָל בְּמַדְלִיק בְּתוֹךְ שֶׁלּוֹ וְעָבְרָה לִשְׂדֵה חֲבֵרוֹ פָּטוּר עַל כָּל הַכֵּלִים הַטְּמוּנִים בַּגָּדִישׁ אֲבָל מְשַׁלֵּם הוּא שִׁעוּר מְקוֹם הַכֵּלִים וְרוֹאִין אוֹתוֹ כְּאִלּוּ הוּא מָלֵא גָּדִישׁ שֶׁל חִטִּים אוֹ שֶׁל שְׂעוֹרִים:

10

A person who kindles a fire in a field belonging to a colleague is also liable [in the following instance]. The fire spread and consumed a kid that was tied to the grain heap or a servant near the grain heap.34 For this is also the ordinary practice near a grain heap. If, however, the servant was tied [to the grain heap], or the goat was near the grain heap, [the person who kindled the fire is not liable].35

י

הַמַּדְלִיק בְּתוֹךְ שְׂדֵה חֲבֵרוֹ וְיָצְאָה הָאֵשׁ וְנֶאֱכַל הַגָּדִישׁ וְהָיָה גְּדִי כָּפוּת לוֹ וְעֶבֶד סָמוּךְ לוֹ וְנִשְׂרַף עִמּוֹ חַיָּב. שֶׁכֵּן דֶּרֶךְ בְּנֵי אָדָם לַעֲשׂוֹת בְּגָדִישׁ. הָיָה עֶבֶד כָּפוּת לוֹ וּגְדִי סָמוּךְ לוֹ וְנִשְׂרַף עִמּוֹ פָּטוּר:

11

When a person lends a colleague space to make a grain heap, the colleague makes that grain heap and hides utensils in it, and then the person who lent him the space burns the grain heap, [the person who kindled the fire] is liable to pay [his colleague] only for the grain heap.36 If he lent him space to make a heap of wheat and he made a heap of barley,37 or he lent him space to make a heap of barley and he made a heap of wheat,38 or he made a heap of wheat and covered it with barley,39 or he made a heap of barley and covered it with wheat,40 [the person who kindled the fire] is not liable to pay any more than the value of a heap of barley.

יא

הַמַּשְׁאִיל מָקוֹם לַחֲבֵרוֹ וְהִגְדִּישׁ בּוֹ וְהִטְמִין בּוֹ כֵּלִים וְהִדְלִיק הַמַּשְׁאִיל וְשָׂרַף הַגָּדִישׁ אֵינוֹ מְשַׁלֵּם אֶלָּא דְּמֵי גָּדִישׁ בִּלְבַד. הִשְׁאִילוֹ מָקוֹם לְהַגְדִּישׁ חִטִּים וְהִגְדִּישׁ שְׂעוֹרִים אוֹ לְהַגְדִּישׁ שְׂעוֹרִים וְהִגְדִּישׁ חִטִּים אוֹ שֶׁהִגְדִּישׁ חִטִּים וְחִפָּם בִּשְׂעוֹרִים אוֹ שֶׁהִגְדִּישׁ שְׂעוֹרִים וְחִפָּם בְּחִטִּים אֵינוֹ מְשַׁלֵּם לוֹ אֶלָּא דְּמֵי שְׂעוֹרִים בִּלְבַד:

12

When a person sets fire to a home belonging to a colleague, he must compensate for everything it contains,41 for it is the ordinary practice for people to keep all their utensils and possessions in their homes. The person whose house [was burned] is entitled to collect everything he claims,42 provided he takes an oath while holding a [sacred] article.43 This oath is a Rabbinic institution, as will be explained.44 [The above applies] provided he claims articles that we can assume he owns45 or that it is customary for others to entrust to him.

יב

הַמַּדְלִיק אֶת הַבִּירָה שֶׁל חֲבֵרוֹ מְשַׁלֵּם כָּל מַה שֶּׁבְּתוֹכָהּ. שֶׁכֵּן דֶּרֶךְ בְּנֵי אָדָם לְהַנִּיחַ כָּל כְּלֵיהֶם וְכָל חֶפְצֵיהֶם בַּבָּתִּים. וְכָל שֶׁיִּטְעֹן בַּעַל הַבַּיִת הֲרֵי זֶה נִשְׁבָּע בִּנְקִיטַת חֵפֶץ וְנוֹטֵל. וּשְׁבוּעָה זוֹ מִדִּבְרֵי סוֹפְרִים כְּמוֹ שֶׁיִּתְבָּאֵר. וּבִלְבַד שֶׁיִּטְעֹן דְּבָרִים שֶׁהוּא אָמוּד בָּהֶן אוֹ שֶׁהוּא לָמוּד לִהְיוֹת אוֹתָן הַדְּבָרִים שֶׁטָּעַן פִּקָּדוֹן אֶצְלוֹ:

13

[The following rules apply when] a camel that is loaded with flax passes through the public domain, the flax that enters the shop46 is ignited by the lamp belonging to the shopkeeper and then sets fire to the entire building. The owner of the camel is liable, because he overloaded [his beast].47 [This applies regardless of] whether or not the animal stood.48 If the shopkeeper had placed his lamp outside, the shopkeeper is liable and must reimburse the camel driver even for the flax that burned, because he placed his lamp outside.49 [This applies] even with regard to a Chanukah lamp,50 for he should have sat [there] to guard it [from causing damage].

יג

גָּמָל שֶׁהוּא טָעוּן פִּשְׁתָּן וְעוֹבֵר בִּרְשׁוּת הָרַבִּים וְנִכְנַס פִּשְׁתָּנוֹ לְתוֹךְ הַחֲנוּת וְדָלְקָה בְּנֵרוֹ שֶׁל חֶנְוָנִי וְהִדְלִיק אֶת כָּל הַבִּירָה בַּעַל הַגָּמָל חַיָּב מִפְּנֵי שֶׁהִרְבָּה בְּמַשּׂאוֹי בֵּין שֶׁעָמְדָה הַבְּהֵמָה בֵּין שֶׁלֹּא עָמְדָה. הִנִּיחַ הַחֶנְוָנִי נֵרוֹ מִבַּחוּץ הַחֶנְוָנִי חַיָּב אַף בִּדְמֵי פִּשְׁתָּן מִפְּנֵי שֶׁהִנִּיחַ נֵרוֹ מִבַּחוּץ. וַאֲפִלּוּ נֵר חֲנֻכָּה הָיָה לוֹ לֵישֵׁב וְלִשְׁמֹר:

14

[The following rule applies when] a person bends standing grain belonging to a colleague toward a fire until it ignites. If the fire would not reach the grain unless it was spread by an uncommon wind, [the person who bent the grain] is not held liable by a mortal court.51 He does, however, have a moral and spiritual obligation to make reimbursement.52 When a person buries standing grain belonging to a colleague in earth or straw,53 and then a fire passes and consumes it, the person who buried [the grain] is not held liable by a mortal court.54 He does, however, have a moral and spiritual obligation to make reimbursement, because the person who kindled the fire is not liable for [the destruction of property that was] hidden.55

יד

הַכּוֹפֵף קָמָתוֹ שֶׁל חֲבֵרוֹ לִפְנֵי הָאֵשׁ עַד שֶׁתִּדְלַק אִם אֵין הָאֵשׁ מַגַּעַת לָהּ אֶלָּא בְּרוּחַ שֶׁאֵינָהּ מְצוּיָה פָּטוּר מִדִּינֵי אָדָם וְחַיָּב בְּדִינֵי שָׁמַיִם. וְהַטּוֹמֵן קָמָתוֹ שֶׁל חֲבֵרוֹ בְּעָפָר אוֹ בְּתֶבֶן וְעָבְרָה הָאֵשׁ וְאָכְלָה אוֹתָהּ הֲרֵי הַטּוֹמֵן פָּטוּר מִדִּינֵי אָדָם וְחַיָּב בְּדִינֵי שָׁמַיִם מִפְּנֵי שֶׁהַמַּדְלִיק אֶת הָאֵשׁ פָּטוּר עַל הַטָּמוּן:

15

When a fire spreads and harms a human being and injures him, the person who kindled the fire is liable for the damages, unemployment benefits, medical costs, pain and embarrassment suffered by the injured party,56 as if he had personally injured him. Although fire is one of a person's possessions, it is as if he caused him damage with his arrows.57 If, by contrast, injury to a man is caused by a person's animal or cistern, he is liable for the damages alone, as we have explained.58

טו

אֵשׁ שֶׁעָבְרָה וְהִזִּיקָה אֶת הָאָדָם וְחָבְלָה בּוֹ הֲרֵי הַמַּבְעִיר חַיָּב בִּנְזָקָיו וּבְשִׁבְתּוֹ וּבְרִפּוּיוֹ וּבְצַעֲרוֹ וּבְבָשְׁתּוֹ כְּאִלּוּ הִזִּיקוֹ בְּיָדוֹ. שֶׁאַף עַל פִּי שֶׁאִשּׁוֹ מָמוֹנוֹ הוּא הֲרֵי הוּא כְּמוֹ שֶׁהִזִּיקָה בְּחִצָיו. אֲבָל אִם הִזִּיקָה בְּהֶמְתּוֹ אוֹ בּוֹרוֹ אֶת הָאָדָם אֵינוֹ חַיָּב אֶלָּא בְּנֵזֶק בִּלְבַד כְּמוֹ שֶׁבֵּאַרְנוּ:

16

[The laws pertaining to] all the derivatives of fire59are the same as [those pertaining to] fire itself. What is implied? If a person placed a stone, a knife or a burden on his roof, and it fell because of an ordinary wind and caused damage, he must pay the full extent of the damages. All these are derivatives of fire.60 If it was an uncommon wind that caused them to fall and create damage, he is not liable.61

טז

כָּל תּוֹלְדוֹת הָאֵשׁ הֲרֵי הֵן כְּאֵשׁ. כֵּיצַד. הִנִּיחַ אֶבֶן אוֹ סַכִּין אוֹ מַשָּׂא בְּרֹאשׁ גַּגּוֹ וְנָפְלוּ בְּרוּחַ מְצוּיָה וְהִזִּיקוּ חַיָּב לְשַׁלֵּם נֵזֶק שָׁלֵם שֶׁכָּל אֵלּוּ וְכַיּוֹצֵא בָּהֶן תּוֹלְדוֹת הַבְּעֵרָה הֵן. וְאִם נָפְלוּ בְּרוּחַ שֶׁאֵינָהּ מְצוּיָה וְהִזִּיקוּ פָּטוּר: סְלִיקוּ לְהוּ הִלְכוֹת נִזְקֵי מָמוֹן בְּסַ''ד

Test Yourself on This Chapter

Footnotes
1.

Without permission.

2.

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.

3.

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.

4.

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.

5.

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

6.

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.

7.

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

8.

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

9.

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

10.

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.

11.

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

12.

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

13.

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

14.

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 couldhave rebuilt the wall and thus prevented the fire from spreading.

15.

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

16.

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

17.

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.

18.

For he is an indirect cause of the damage.

19.

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

20.

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.

21.

When he accepted the responsibility to guard the fire, he also accepted the liability if he failed to do so adequately. See Chapter4, Halachah 4 and notes.

22.

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

23.

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

24.

Because it is the fanning that causes it to spread.

25.

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.

26.

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.

27.

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.

28.

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: Thorns are consumed entirely by flames (as are standing and 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.

29.

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.

30.

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.

31.

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

32.

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 Mishpat418:13), 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.

33.

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 burns clothes or glassware hidden in a grain heap, as mentioned in the previous halachah.

34.

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.

35.

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 monetaryloss. 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.

36.

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

37.

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.

38.

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

39.

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).

40.

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).

41.

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

42.

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.

43.

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

44.

See Hilchot Chovel UMazik 7:17; Hilchot To'en V'Nit'an1:2. (See also Hilchot Sh'vuot 11:6.)

45.

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

46.

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.

47.

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

48.

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.

49.

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.

50.

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

51.

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.

52.

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.

53.

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.

54.

For he himself did not set the fire.

55.

See Halachot 8 and 9.

56.

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

57.

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.

58.

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

59.

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.

60.

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

61.

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

Published and copyright by Moznaim Publications, all rights reserved.
To purchase this book or the entire series, please click here.
The text on this page contains sacred literature. Please do not deface or discard.
Vowelized Hebrew text courtesy Torat Emet under CC 2.5 license.
The Mishneh Torah was the Rambam's (Rabbi Moses ben Maimon) magnum opus, a work spanning hundreds of chapters and describing all of the laws mentioned in the Torah. To this day it is the only work that details all of Jewish observance, including those laws which are only applicable when the Holy Temple is in place. Participating in one of the annual study cycles of these laws (3 chapters/day, 1 chapter/day, or Sefer Hamitzvot) is a way we can play a small but essential part in rebuilding the final Temple.
Download Rambam Study Schedules: 3 Chapters | 1 Chapter | Daily Mitzvah