Bava Kamma 054

1:
We have arrived at the last of the four major causes of claims for damages: after the ox, the pit and other animals our present mishnah is the first of three that are concerned with damage caused by fire. And what a long mishnah it is! It will help our understanding, of course, if we deal with its various clauses separately.

2:
The first few clauses are concerned with establishing liability for damages in cases where fire causes damage to the property of another. The basis for all these rules is to be found in the Torah [Exodus 22:5]:

The first clause of our mishnah deals with a situation in which "he who started the fire" is not legally competent and therefore cannot be sued. What our mishnah is trying to establish is how the court may determine "who started the fire".

3:
To start a fire one needs tinder and a spark. The tinder was usually wood and the spark usually came from a flint. Let us imagine that David has reaped his harvest and transferred all his produce to the common field. Now he wants to set fire to the stubble that is left in order to clear his way for next year's sowing. He sends Shlomo, his 11 year old son, into the field with some wood and two flints and tells him to set fire to the field. Shlomo does so but the fire get out of control and causes damage to the field of Sara, David's neighbour. Who is responsible? Whom should Sara sue? Should it be David? David instigated the fire, but he does not exactly answer to the Torah's definition "he who started the fire must make restitution." It is Shlomo who answers to that description. But Shlomo cannot be sued because he is legally incompetent since he is a minor. (The same would have applied had the one who applied the spark to the tinder been a deaf-mute or mentally incompetent.) In such circumstances no one can be sued. While the sages recognize that David is morally responsible he cannot be brought to account in a human court; his guilt and his punishment must be left to heavenly justice. (What our mishnah does not say, because it is concerned with establishing general rules of procedure and not specific instances, is that the court would have other means at its disposal – social and economic sanctions – to persuade David to make good Sara's loss "out of the kindness of his heart".)

4:
We must consider the next few clauses as one unit.

If one causes a conflagration via a sane person that sane person is liable.

In other words, if David had sent one of his labourers to set light to the field it would be the labourer who is liable because he answers to the requirement of the Torah that "he who [actually] started the fire must make restitution." He is legally competent and must take responsibility for his actions. One might claim that this is unfair because the labourer is David's agent. All those many years ago when we studied Tractate Kiddushin we learned that a person's agent is as himself. In other words, what David's agent does at David's request is, in fact, David's action. But the sages cautioned that this rule does not hold when a crime is involved (or, in our case, a tort). The agent is legally competent and must know when an instruction is not to be obeyed.

5:
But now let us imagine a more complicated situation: Joel brings the flint and then along comes Sam with the wood. Sam is liable in this case. Why? We shall soon see. (If Sam had arrived first on the scene with his wood and only later had Joel brought the flint it would have been Joel who is liable.) But let us now imagine a third person as being involved: Amos comes and fans the spark into a flame. Now both Joel and Sam would be let off the hook and it would be Amos who is liable.

6:
What our mishnah has established is that where more than one person is involved it is the last person, or the latest person, who must be held as being "he who started the fire". It therefore follows that if it was the wind that fanned the fire into a blaze none of the participants is "he who started the fire". It was an act of God.

To be continued.