Hakoness - Shiur #09: Bava Kama 59b-60a One Who Sent Out A Burning Object With Another Person And One Who Fanned A Burning Object Together With The Wind

  • Rav Shmuel Shimoni

I. If one sent out a burning object through a deaf-mute, an idiot or a minor

If a man sent out a burning object through a deaf-mute, an idiot, or a minor [and damage resulted], he is patur be-dinei adam ve-chayav be-dinei shamayim (exempt according to the laws of man, but liable according to the laws of heaven). But if he sent [it] through a normal person, the normal person is liable. (Bava Kama 59b)

            Our Mishna is cited in Kiddushin 42b, where it is explained in light of the law that ein sheliach li-devar aveira (there is no agency for sin).[1] We learned, however, in Bava Metzia 10b (according to Ravina) that when the agent is not subject to liability, yesh sheliach li-devar aveira (there is in fact agency for sin), and a deaf-mute, an idiot and a minor [Editor’s note: henceforth "a minor" or "a deaf-mute" even when referring to all three] are not subject to liability. The Ritva, therefore, writes there "that it is different there, for he did not tell them to cause damage, but merely put the burning object into their possession, and in such a way that it could only cause damage through the handling of the minor, so that the sender caused the damage only indirectly." This implies that if the person who sent the burning object instructed the minor to ignite the other person's property, he would be liable (in dinei adam as well), and only if he sent it with a normal person is he exempt, because of the rule of ein shaliach li-devar aveira.

According to this it turns out that the Gemara in Kiddushin explains our Mishna in a forced manner, that the person who sent the burning object with the normal person instructed him to ignite the other person's property, whereas the person who sent it with the minor did not give him such instructions.

            In any event, our concern today is not the liability of the sender as a sender, but rather his direct liability for fire damage. It should be noted that from here until the end of the chapter the Gemara deals with various aspects of fire damage, but the fundamental passage dealing with liability for fire damage is found in the second chapter of our tractate (22a-23a), and that a shiur dealing with that passage is found in the VBM's archive.

At this stage, I wish only to note that Rabbi Yochanan and Resh Lakish disagree about the nature of this primary category of damage. According to Rabbi Yochanan, "his fire is due to his arrows" (isho mishum chitzav) – at one level or another, the fire's burning is perceived as the act of the person who ignited the fire, and the damage caused by it is seen as damage inflicted by the person himself. According to Resh Lakish, on the other hand, fire is not analogous to an arrow, for a fire does not advance through the force of the person in the same way that an arrow that he shoots does. According to him, "his fire is due to his property" (isho mishum mamono) – fire is like a person's ox for which he is responsible.

At the beginning of the discussion there, the Gemara explains that Rabbi Yochanan rejects the possibility that isho mishum mamono because this property "has no substance." From the plain sense of the Gemara's conclusion according to our version of the discussion, it seems that Rabbi Yochanan recognizes two separate channels of liability for fire; it is due both because of mamono and chitzav, each one having its own advantages and disadvantages. The fact, however, is that the Gemara's conclusion, especially according to Rashi and the Rambam, is very complicated and subject to different readings, and it is not at all clear that Rabbi Yochanan recognizes isho mishum mamono.

            In our passage, Resh Lakish and Rabbi Yochanan agree that the exemption granted to the person who sent a burning object through a minor, is limited, but they disagree about the extent to which it is limited:

Resh Lakish said in the name of Chizkiya: The mishna's ruling only applies where he handed over a [flickering] coal to [the deaf-mute] who fanned it into flame, but if he handed over to him something already in flame he would be liable. What is the reason? It was his acts that were the [immediate] cause. But Rabbi Yochanan said: Even where he handed something already in flame to him, he would still be exempt. What is the reason? It was the handling of the deaf-mute that caused the damage; he could therefore not be liable unless he handed over to him tinder, shavings and a light, in which case it was certainly his act that was the immediate cause.

            This dispute is also discussed earlier in the tractate, p. 9b and p. 22b. Resh Lakish's position may be understood in light of his view that isho mishum mamono. Just as one who entrusts his ox to a minor is liable, as this is not adequately watching it that it not cause damage, so too one who entrusts his fire to a minor is liable. Why then is one who hands over a flickering coal to a minor exempt?

The Gemara on p. 9b, which also records this disagreement, says that "a hot coal, the longer you leave it alone, the more it will get cooler" – the coal on its own will become extinguished, and it is the minor who fanned it. Rashi there (s.v. me'amya) explains that the owner of the coal had no reason to think that they would fan it. The implication is that the difference between a coal and a flame stems from the measure of negligence.

On p. 22b, however, Rashi implies otherwise. The Gemara there (and similarly on p. 9b) explains Resh Lakish's rationale not as it does here that only in the case of a flame do we say that "it was his acts that were the [immediate] cause," but rather that in the case of a flame "the danger is clear." Rashi explains: "'A coal that he fanned' – the deaf-mute, for it is not like an ox, which is ready to cause damage. But rather the deaf-mute turned the coal into a hazard. 'The danger is clear' (bari hezeika) – its danger is ready, and it is like his ox."

Rashi implies that the obligation to watch over one's property applies to property that can be defined as a hazard, a potential source of damage. An ox is considered a hazard, and therefore one must watch over it. A coal, in contrast, is not considered a potential source of damage, and there is no obligation to watch over it. It is the minor who turned it into a hazard, and therefore it is not considered a situation in which the owner did not properly watch over his property that it not cause damage. That is to say, the rationale of "bari hezeika" reflects not only a different level of likelihood of damage and negligence on the part of the owner, but also the very definition of the fire as a potential source of damage.

            All of this applies to Resh Lakish. But Rabbi Yochanan exempts the sender even in the case of a flame, because there too "it was the handling of the deaf-mute that caused the damage." Rashi on p. 9b explains: "'It was the handling of the deaf-mute that caused the damage' – the deaf-mute's handling of the flame caused the fire, for he took it and carried it to the grain stack; here the handling of the deaf-mute did not cause the damage, for the ox went and caused the damage, and so too the pit, and it was not through the deaf-mute that it caused the damage."

Rashi implies that even according to Rabbi Yochanan fire should be compared to an ox and a pit. This may be because even according to Rabbi Yochanan it is possible to impose liability because the fire is his property. The difference between an ox and a flame is that when a person is negligent in watching over his ox and hands it over to a minor, the animal is not being watched and it can go off and cause damage; whereas in the case of a fire a human factor – the minor – is involved, for it is he who causes the flame to cause damage. A person, even if he lacks intelligence and is not subject to liability, is not an instrument in someone else's hand. He is an autonomous agent who is involved in the process, and the damage can be attributed to him rather than the person who sent him.

            A different understanding arises from the words of Rashi on p. 22b, but it should be remembered that at that stage of the discussion there the Gemara maintains that according to Rabbi Yochanan holds of isho mishum chitzav exclusively (and as stated above the Gemara's conclusion there on p. 23a is entirely unclear).[2] Rashi explains that indeed Rabbi Yochanan bases his ruling there on his position of isho mishum chitzav, and that the disagreement between Rabbi Yochanan and Resh Lakish in our passage stems from their disagreement there.[3] According to Rabbi Yochanan liability cannot be imposed upon someone who hands a flame to a deaf-mute, because fire is not property that requires watching over, as does an ox. The way to impose liability in the case of fire is to see the damage as the direct consequence of the person's action, and in this case it is the action of the deaf-mute: "It is the arrows of the deaf-mute."

See Tosafot, ad loc. (s.v. hitzav), who have reservations about basing Rabbi Yochanan's position in our Gemara on his view that isho mishum chitzav, because according to the conclusion it is also true that we say isho mishum mamono. They therefore explain that even regarding the liability for isho mishum mamono, Rabbi Yochanan maintains that handing a flame over to a minor is not considered negligence similar to that of handing over an ox to a minor. Tosafot Rabbeinu Peretz even adds that a minor provides a certain measure of watching (see Tosafot 9b, s.v. u-le-Rabbi). There are then three understandings of Rabbi Yochanan's exemption in the case of a flame: because there is sufficient watching (in which the dispute with Resh Lakish is a quantitative one); because the damage inflicted is not mishum chitzav; or because even when one's property causes damage, no liability is imposed when some other human factor is involved in causing the damage. The wording, "It was the handling of the deaf-mute that caused the damage," seems to support the last two possibilities.

II. If it was the wind that fanned it

            In the continuation of our Mishna it says: "If it was the wind that fanned it, all would be exempt." The Rishonim turn our attention to a disagreement recorded in the Yerushalmi (halakha 4) on this matter: "There we said: Our mishna is dealing with a wind regarded as an ones (unavoidable accident). But in the case of a customary wind, he is liable. Rabbi Yochanan and Resh Lakish both said: Even in the case of a customary wind, he is exempt, for sometimes it comes, and sometimes it does not come. The Rishonim had difficulty understanding the viewpoint of Rabbi Yochanan and Resh Lakish, because liability for damage caused by fire is based on the assumption that an ordinary wind is liable to cause the fire to spread and cause damage.

            Tosafot Rabbeinu Peretz (ad loc.) maintain (a position that was rejected by Tosafot) that a distinction must be made between an existing fire, that the wind merely spreads from one place to another, and a situation in which the wind creates the hazard by fanning the coal: "When a fire lacks fanning so that the name 'fire' does not apply, we don't apply to it: 'One who kindled the fire.'"

Tosafot raised an objection against this from the Gemara above, p. 9b, from which it would appear that even for the handing over of a coal to a minor or the like, we would have imposed liability, were it true that the minor's mere carrying of the coal would cause it to blaze. Rabbeinu Peretz responds that if the wind is already a factor that is found in the world at the time that the coal was left in the hands of the minor, then we could say that he is leaving a hazard in his hand, and the minor is already in the world. That is to say, he distinguishes between a wind that already exists and one that does not yet exist; and he supports what he says with the wording of the Yerushalmi: "For sometimes it comes, and sometimes it does not come."

It would seem, however, that according to this we should slightly change his formulation and say that even with respect to a wind that does not yet exist, if we are certain that it will come, it is already considered as a factor that exists in the world, that the person exploits for his purposes, and therefore the Yerushalmi relies on the lack of certainty. It stands to reason that Rabbeinu Peretz did not say this because he thought that there is no such thing as a wind that has not yet come, but will certainly arrive in the near future.

            I still have difficulty with Rabbeinu Peretz's fundamental position, for even though the distinction between creating a hazard and moving it from one place to another is a valid one, and as we shall see it emerges from other contexts in the passage, I don't understand why there is no liability when there is a high likelihood that the conditions in the field will lead to the creation and spreading of the hazard. The matter requires further examination.

The Rashba, in any event, explained in the Yerushalmi that all agree that in the case of an ordinary wind, he is liable, and that in the case of a wind that falls into the category of ones, namely, "a tempestuous wind that is not common, that only blows infrequently… that he had no reason whatsoever to consider," he is exempt. They only disagree in the intermediate case, namely, "a wind that occasionally blows, a little stronger than what is usually found." This disagreement is certainly a disagreement about the precise level of responsibility expected from someone who lights a fire, and does not give rise to any special difficulty.

III. Where he fanned it along with the wind that also fanned it

Our Rabbis taught: "Where he fanned it [along with] the wind that also fanned it, if there was enough force in his blowing [alone] to set the fire ablaze he would be liable, but if not he would be exempt." But why should he not be liable, as in the case of one winnowing [on Shabbat, who is liable] though the wind was helping him? Abaye said: We are dealing here with a case where he blew it in one direction and the wind blew it in a different direction. Rava said: [The case is one] where he started to blow it when the wind was only normal, [and would have been unable to set it ablaze], but there [suddenly] came on an unusual wind that made it blaze up. Rabbi Zeira said: [The case is one] where he merely increased the heat by breathing heavily on it. Rav Ashi said: When we say that there is liability for winnowing where the wind is helping, this applies to Shabbat where the Torah prohibited any thoughtful work [melekhet machshevet], whereas here [regarding damage] such an act could be considered merely indirect damage [gerama], and for indirect damage one is exempt.

The comparsion to the case of "two who did it" regarding Shabbat

            The Gemara's question from the case of "one winnowing on Shabbat through the help of the wind" relates to the possibility of assigning the wind's action to the person fanning the coal, even though his own action would not have sufficed to set it ablaze. Before the Rishonim discussed this issue, they clarified the situation of the person fanning the coal based on the assumption that the wind's action is not attributed to him, by examining the law stated in the Baraita: "If there was enough force in his blowing to set the fire ablaze he would be liable, but if not he would be exempt." The Baraita does not relate to an additional factor, whether or not there was enough force in the wind's blowing to set it ablaze. The Rishonim dealt with this question.

            Let us preface by saying that the Gemara in Shabbat 92b-93b deals with various cases of two people who together performed a prohibited labor on Shabbat (and at least in certain contexts in the passage there, it would appear that the principles might be extended to other halakhic areas as well). It is agreed that if the action of the one would have sufficed to perform the labor, while the action of the second would not – this one can do it, while the other one cannot do it – the one who can do it is liable, while the one who cannot do it is merely considered a helper whose action is not seen as a concrete act.

In cases where each of them can do it or neither of them can do it, Rabbi Shimon says they are both exempt, whereas Rabbi Meir says they are both liable. Rabbi Yehuda – whose view the Rambam codifies as the normative law – distinguishes between the cases: If each of them can do it on his own, they are exempt, but if neither of them can do it on his own, they are liable. The exemption in the case where each of them can do it may be based on a Scriptural decree found in Shabbat 3b: "'[And if anyone] of the common people sin unwittingly, in doing [any of the things etc.]' - only he who performs the whole of [a forbidden action], but not he who performs a portion thereof. [Hence] if a single person performs it, he is liable; if two perform it, they are exempt." Or else it is based on the fact that neither of the two people caused the prohibited labor to be performed, because it would have been caused even without him. When neither of them could have done it on his own, each one is seen as an essential condition, and apparently this is not a case of "two who did it," because the lack of each person's independence causes the two of them to be considered a single unit acting together.

            Returning to our issue, the Rishonim dealt with the joint action of the person who fanned the coal and the non-human factor, i.e., the wind. Here too it is obvious that if there was enough force to his blowing to set the fire ablaze, but insufficient force in the wind, he would be liable. If there is insufficient force in both his blowing and in the wind, the view of Tosafot and the Rashba is that he is exempt. The law here is different than regarding Shabbat according to Rabbi Yehuda. The Tosafot explain: "This is the implication of the words 'he who kindled the fire,' that by himself he kindled a fire that can cause damage in an ordinary wind." Here once again we encounter a distinction between an existing fire, even though its spreading depends on the wind, and the creation of a fire. The Tosafot maintain that a fire is only attributed to a particular person if he is its sole creator.

            As for the case where both the person and the wind have sufficient force to set the fire ablaze, the Tosafot and the Rashba disagree. The Tosafot maintain that liability can only be imposed when there was enough force in his blowing to set the fire ablaze, but not in the wind, and so the wind is merely a helper whose action is not seen as a concrete act. They do not base the exemption in the case where they both have sufficient force on the law of "two who did it," which is perhaps a Scriptural decree limited to the laws of Shabbat, but rather on the fact "that even without him, it would have spread and caused damage." Since the wind is a given, his action is of no consequence.

The Rashba, however, disagrees and says that in such a case the person is liable. That is to say, according to the Rashba, we are not at all concerned with the force of the wind, but only with the force of the person's fanning the coal – if it is not enough to set the fire ablaze, he is not considered as the fire's kindler, and if it is enough to set the fire ablaze (without the help of the wind), he is considered the fire's kindler. Even though another force is also active, the action is attributed to him. The two factors operate in the same direction, and the action of one does not exempt the other.[4] The laws of damage, between man and his fellow, do not recognize an exemption of the sort of "two who did it," which requires exclusive responsibility for an action.

The comparison to the case of winnowing on Shabbat with the help of the wind

            As stated, the Gemara's comparison between the laws of damage and the laws of Shabbat relates to the possibility of attributing the action of the wind to a person. The archetype of such a situation is the prohibited labor of winnowing, which is punishable by stoning even though the action is done with the help of the wind, and it would seem that the person exploits the wind and uses it for his purposes. In light of what we have seen, it is possible that the basis of the comparison between damage and Shabbat, which will be developed in light of the answers provided by the Amoraim that will be immediately examined, is not a general comparison between an act of damage and an act on Shabbat, and perhaps not even a general statement regarding fire damage, but rather a comparison that relates to the creation of a hazard.

As it would appear from the words of the Rishonim, we are dealing here with the stage of the creation of the fire, and with respect to this stage a comparison is made to the prohibited labors of Shabbat, which as we know also deal with the creation of something new, and here the question arises whether this joint action together with the wind prevents a person from being considered the creator of the new creation.

            As can easily be seen, the answers given by the Amoraim divide into two categories. The first three Amoraim accept the comparison and restrict the exemption to the case where there is not enough force in his blowing to set the fire ablaze. It is possible that there is no real disagreement between them. In principle, even when there is not enough force in his blowing to set the fire ablaze we can impose liability because of the fanning of the wind, provided that they are working in the same direction, because it is an ordinary wind and the person's action is significant. These approaches lessen the problem that arises when we emphasize the creation of the fire, because the action of the wind can also be counted to the kindler's discredit. In contrast, however, stands the position of Rav Ashi:

When we say that there is liability for winnowing where the wind is helping, this applies to Shabbat where the Torah prohibited melekhet machshevet, whereas here [regarding damage] such an act could be considered merely gerama, and for gerama one is exempt.

            We are accustomed to encounter the concept of "thoughtful work" as a factor that restricts liability for performing a prohibited labor on Shabbat (lack of intention, a labor performed not for its own sake, and the like), whereas in our passage the concept is used for stringency. According to the Rosh (ad loc., no. 11), we are dealing with a localized concept regarding the labor of winnowing, which is a labor that by its very definition is built on using the wind:

Even though it is only indirect action, the Torah imposes liability, since this labor is primarily performed by way of the wind.

            However, the words of Rashi imply that we are dealing with a broader principle:

Melekhet machshevet – his intention was fulfilled, for he is pleased that the wind helps him.

According to Rashi, Rav Ashi's answer seems to be that using the wind falls into the category of gerama - indirect action, and not the person's action. For this reason, in a case of damage he is exempt (but once again, it is possible that this is only with respect to the person's definition as creator of the hazard, the kindler of the fire). But in the case of Shabbat, he would be liable, for his intention was fulfilled. The law of thoughtful work places the emphasis on the person's intention and desire, and this leads both to leniency and to stringency.

            For our purposes, Rav Ashi's position restricts the possibility of imposing liability on one who fanned a fire by means of the wind, and establishes that this is merely an indirect action. See Tosafot, s.v. ve-hakha, who write that this implies that even if two people brought wood and a flame, and they both fanned the fire, and neither could have fanned it by himself, but they knew that between the two of them they could set the fire ablaze,[5] they are exempt, because each of them merely indirectly caused the fire to burn. The Tosafot conclude by saying: "But this is astonishing." Indeed it is astonishing that they should be exempt. The Rambam (Hilkhot Nizkei Mamon 14:7), however, rules with respect to our passage: "If a person fanned a fire, but it was also fanned by the wind, the person is liable, for his [actions] caused damage.  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." The Ra'avad expresses surprise about this ruling, noting that the Rambam does not distinguish between whether or not there was enough force in his blowing to set the fire ablaze. The Maggid Mishneh and the Kesef Mishneh explain that the Rambam rules in accordance with the viewpoints of the first Amoraim. What seems more persuasive, however, is the view of the Shakh (418, no. 4) and the Gra (there, no. 19) that the Rambam rules in accordance with Rav Ashi, only that according to his position on indirect action, liability is imposed in such a case. Practically speaking then, the room for the Tosafot's astonishment is removed (see, however, Rema 418:9 who cites Tosafot's conclusion).

            The words of Rav Ashi, especially according to the way that they were understood by Rashi, raise additional weighty questions. Some relate to the laws of Shabbat, for it would seem that the entire law of indirect action is erased, when a person's intention has been fulfilled.[6] Perforce we must distinguish between the cases in one way or another. Other questions relate to the passage dealing with dust (rakta) in Bava Batra 26, and to the words of the Rishonim there and here (and so too the Ramban at the end of Dina de-Garmei) dealing with the relationship between Shabbat and damage in each of the passages, and the relation between the various passages. Regarding these matters, it is recommended that you see the following shiurim in the VBM archives:

http://etzion.org.il/vbm/update_views.php?num=2896&file=/vbm/archive/10-shabbat/08shabbat.rtf,

http://etzion.org.il/vbm/archive/yomyom/dafyomyomi/2009-09-16.php,

http://etzion.org.il/vbm/update_views.php?num=7611&file=/vbm/archive/16-beshiv/beshiv245.doc.

 

Sources for the Next Shiur (no. 10)

            For the next shiur, please learn from the mishna on p. 60a to the mishna on p. 61a. The shiur will deal with the short passage on 60b regarding one who rescues himself through the destruction of another person's property ("Rav Huna amar… ve-ein mochin beyado"). Pay attention to the dispute between Rashi (s.v. vayatzila) and the Tosafot (s.v. mahu) about how to understand the passage, and think about the difficulties raised by each position.

            For those who wish to delve into the matter more deeply, see Bava Kama 117b: "Ha-hu gavra de-hava mafkid lei" until the mishna, and Ra'avad in the Shita Mekubetzet, ad loc.

(Translated by David Strauss)

 

 


[1]      The question may be raised whether it follows from this that liability for damage stems from the prohibition to cause damage, but this is not the forum in which to expand upon the matter. It should also be noted that our mishna implies that if one gave the burning object to a normal person, he is not liable even according to dinei shamayim. Regarding this point, see Ritva, Kiddushin, ad loc., and in our tractate, above p. 56a, regarding one who hired false witnesses (a case with which we have not dealt). We shall also not deal with this issue in today's shiur.

[2]      In any event, this is the explicit position of Tosafot Rid on our passage.

[3]      The Gemara there already suggested that the exemption in our passage is easier to understand if we hold isho mishum chitzav: "Granted according to the one who says isho mishum chitzav, it is the arrows of the deaf-mute."

[4] The Rashba does not raise the question that the person who fanned the fire should be exempt because he did not make the situation any worse, but only that we should impose only partial liability upon him, because the wind was also responsible for the damage. See there what he answers.

[5] According to what the Tosafot say (s.v. liba), in disagreement with the Rashb), it would seem that the same law should apply in the case where there was enough force both in his blowing and in the wind to set the fire ablaze, but there is room to distinguish between the cases.

[6] This seems to follow also from the position of the Mordekhai in Gittin, no. 344 and the Ran on the Rif in Shabbat (37b in the Alfasi, and against the Rashba, Shabbat 104b), that a person is liable on Shabbat for writing, if he erased around the form of a letter, thus creating a letter. As the Mordekhai writes: "There the Torah forbids melekhet machshevet, and the labors of Shabbat depend on intention, and since he intends to make letters, we do not care how this is done, but only that it be done by him." An important qualification of this law of melekhet machshevet as a stringency, which is based on what Rashi says in our passage, emerges from these Rishonim. See http://www.etzion.org.il/dk/5764/940mamar.htm#fn3. See also Minchat Asher, Bava Kama, no. 35.