Question: If one accidentally starts a fire in his friend’s house, is he liable for damage caused to all of the items in his friend’s house?
Short Answer: Yes, he is liable for anything that is typically in a person’s house, even if the item is hidden in the house.
Explanation:
I. All About Fire
The Mishnah (Bava Kama 61b) cites a machlokes whether a person who sets a fire is liable for damages done to utensils that are burned from his fire. Rabbi Yehudah holds that the fire-setter is liable for damages to anything in the burned field. The Chachamim disagree and hold that the fire-setter is only liable for damages to the field, but not for utensils in the field.
Rava (Gemara ibid) explains the machlokes. While Rabbi Yehudah and the Chachamim disagree about a case where the fire-setter lights the fire in his own field and it spreads to his friend’s field, they also disagree about a case where the fire-setter lights the fire in his friend’s field. In such a case, Rabbi Yehudah holds the fire-setter liable for damages to all utensils, while the Chachamim only hold him liable for damages to utensils that are typically in the field, such as field utensils.
The source of the Chachamim’s exemption is found in the Gemara (Bava Kama 60a). The pasuk (in Mishpatim – Sh’mos 22:5) states “o ha’kamah,” implying that the fire-setter is only liable for items that are “revealed,” i.e., not hidden, in a field. Tosafos (Bava Kama 61b) elaborates why the Chachamim distinguish between a case where the fire-setter lights the fire in his own field and it goes into his friend’s field (where he is not liable for anything), and where the fire-setter lights the fire in his friend’s field (where he is not liable for items that are not typically in the field). In the former case, the pasuk exempts hidden objects. In the latter case, the pasuk does not apply (as the pasuk is limited to fires started in one own’s field), but an exemption for non-field objects, such as wallets, makes logical sense, as the fire-setter should not, and would not, have expected these items to be in the field.
II. Person or Money
The Gemara (Bava Kama 22a) sets forth a machlokes between Rabbi Yochanan and Reish Lakish regarding the nature of fire with respect to damages. Rabbi Yochanan considers fire “mishum chitzo,” as if the person himself damaged; but Reish Lakish considers fire “mishum memono,” as if the person’s cattle damaged. The Gemara (ibid, 23a) presents a ramification: whether the fire-setter is liable to pay for tzaar, ripui, sheves, and boshes, the four additional payments made only by a tortfeasor who personally damages another person, but not when the tortfeasor’s cattle damages another person.
The Gemara (ibid) likewise asks, according to Rabbi Yochanan, how can the Chachamim ever exempt a fire-setter from liability for hidden objects in a field? Since fire is “mishum chitzo,” as if the person himself damaged the objects, shouldn’t the fire-setter be liable regardless of whether he knew about the hidden objects? The Gemara answers that Rabbi Yochanan agrees that fire is “machmas gufo,” but he holds that there is an aspect of “chitzo” as well. Thus, a case where the fire-setter is exempt from liability for hidden things is where the fire began in his own field, but the fence separating his field from his friend’s field fell down and the fire-setter did not rebuild it. Thus, the fire-setter is liable only for revealed items in his friend’s field because of “memono,” but is exempt from hidden objects in his friend’s field because his “chitzo” stopped after the fire left his own field.
III. The Rambam vs. the Shulchan Aruch
The Rambam (Hilchos Nizkei Mamon 14:15) holds that fire is “mishum chitzo” and, therefore, based on the above Gemara, “memono” as well. The Maggid Mishneh notes that the Rambam holds that fire is “mishum chitzo” but omits any distinction with respect to hidden objects in a field. In other words, the Maggid Mishneh queries why the Rambam does not write that a fire-setter is exempt from liability for burning hidden objects in his friend’s field only where the fire began in his field and spread to his friend’s field because the fire-setter failed to rebuild the fence separating the field.
The Shulchan Aruch (Choshen Mishpat 418:13), on the other hand, codifies all the above sources in the Gemara. Indeed, the Shulchan Aruch holds that a fire-setter is exempt from liability for hidden objects, but only where the fire-setter started the fire in his own field and it spread to his friend’s field because the fire-setter failed to rebuild the fence separating the field. However, in other cases, where the fire started in his own field, or where the fire started in his friend’s field, the fire-setter is liable for all damages that are caused to items typically left in the field. The Shulchan Aruch adds that, with respect to fires in houses, the fire-setter is liable for damages to any normal house item, including all utensils.
IV. The Shach’s Distinction
The Shach (6) clarifies the ruling of the Shulchan Aruch. The Shulchan Aruch (Choshen Mishpat 388:1) holds that a tortfeasor is liable even for hidden possessions not usually in the destroyed object, where the tortfeasor knew that these hidden possessions were in the destroyed object. This appears to contradict the words of the Shulchan Aruch here, which implies the fire-setter is never liable for such hidden possessions.
The Shach answers that the Shulchan Aruch (388) is only discussing a case where the tortfeasor destroyed the object “b’yadayim,” while our Shulchan Aruch (418) by the fire is discussing a case of destruction by negligence.
The Pischei Choshen (N’zikin 9:22, n. 57) notes that the distinction of the Shach is a bit vague. There is no guidance as to when damages are considered “b’yadayim” versus “negligent.” He suggests, based on the Ramban and the Rashba, that “b’yadayim” means intentional damage. However, he notes that Tosafos appears to disagree with such a definition.
The upshot is that a negligent fire-setter is liable for hidden objects where he negligently starts a fire in his friend’s field.
V. The Aruch HaShulchan
According to the Shulchan Aruch (above), a fire-setter is liable for all house utensils where he negligently sets a fire in his friend’s house. The Aruch HaShulchan (Choshen Mishpat 418:7) appears to disagree. He limits this ruling only to utensils that are normally in a house. A fire-setter is not liable for animals, such as cattle, that happen to be in the house and are destroyed by the fire.
Rabbi Ephraim Glatt, Esq. is the Associate Rabbi at the Young Israel of Kew Gardens Hills, and he is a Partner at McGrail & Bensinger LLP, specializing in commercial litigation. Questions? Comments? Email This email address is being protected from spambots. You need JavaScript enabled to view it..
