Hakoness – Shiur #11: Comments on the end of chapter Hakoness Bava Kama 61a-62b
Our goal today is to finish chapter Ha-Koness, and thus prepare ourselves to begin next week our study of chapter Ha-Chovel. We will not address all of the issues that arise at the end of the chapter, but rather we will limit ourselves to a brief discussion of the precautions that must be taken with respect to fire and of the laws governing mazik be-reshut (damage done with permission) that follow from them. The exemption granted regarding tamun ba-aish (concealed goods that were damaged by a fire), which is also discussed on this page, is intimately connected to the passage dealing with the fundamental laws governing fire damage in chapter two, a discussion of which can be found at http://www.etzion.org.il/dk/5765/996bk.htm.
Barriers That Grant Exemption in Cases of Fire Damage
The mishna on p. 61a has a list of barriers regarding which there is no liability if a fire crossed them: a fence, a public road, and a canal. The mishna on p. 61b discusses the case of ha-madlik be-tokh shelo (a person who lights a fire on his own premises) and is careful to distance the fire as necessary (from anything it may damage) to be free of liability, and the position of Rabbi Shimon that the necessary distance depends upon the fire. It would appear from the Rashba (s.v. matnitin ha-madlik) that the two mishnayot deal with the same issue, and that Rabbi Shimon's position that was accepted as law, applies also to the previous mishna, and that it all depends upon the fire. The Meiri, on the other hand, suggests that we are dealing here with two separate issues:
Our Rabbis ruled that there is a distinction between madlik be-tokh shelo and madlik be-tokh shel chaveiro (one who lights a fire on another person's premises). For a madlik be-tokh shelo, distance suffices, even without a fence, or a canal, or a public road. And they only required a high fence if he lights the fire close by. But be-shel chaveiro, since he lit the fire without permission, he needs a fence or a canal. And all the more so, regarding a madlik be-tokh shelo, these suffice without any distance. And so too they ruled that Rabbi Shimon's statement that it all depends on the fire includes many matters that we have not mentioned, e.g., if there was no barrier and insufficient distance, but the fire he lit on his own premises is so small that it is possible that there is no liability.
The Meiri makes use of a distinction that is mentioned in other contexts on these pages between madlik be-tokh shelo and madlik be-shel chaveiro. A madlik be-tokh shelo creates a fire that in itself is not regarded as an illegitimate hazard, only that he must watch over it that it not spread, and here distance alone suffices. In contrast, a madlik be-shel chaveiro creates an illegitimate hazard and therefore he is liable for the damage that it causes. Only if there is a barrier that is supposed to be impassable is the damage regarded as not subject to his control, which renders him not liable.
Even the Rosh (no. 13), who infers from the Rif like the Rashba that Rabbi Shimon's ruling makes the first mishna unnecessary, writes that regarding distance we distinguish as follows: "They only specified a measure with respect to madlik be-tokh shelo, but with respect to madlik be-shel chaveiro, since he lights it without permission, they did not specify a measure." Further study is required as to what his position is if there is a case of a madlik be-shel chaveiro and the fire passes over a canal or a fence and causes damage.
In any event, a madlik be-tokh shelo at a fitting distance, all the Tannaim in our passage agree that he is exempt. The Gemara on p. 61b cites the mishna in Bava Batra 20b, where the Tannaim disagree whether a person who lit a fire in his house with the necessary precautions (and the fire nonetheless caused damage) is liable. According to Rabbi Shimon, "these measures were only laid down with the idea that if after observing them, he still causes damage, he is not liable to pay." Rabbi Shimon draws a connection between permitted conduct and exemption from monetary liability. The Gemara in Bava Metzia 118b includes Rabbi Shimon in the camp that follows this approach in various contexts: "Abaye said: Rabbi Yehuda, Rabban Shimon ben Gamliel and Rabbi Shimon all maintain that wherever the Sages gave permission [to do a certain thing] and damage was thereby caused, there is no liability."
The passages in Bava Kama and Bava Metzia seem to disagree about how to understand the mishna in Bava Batra. According to the Gemara in Bava Kama, Rabbi Shimon's position seems to be based on the ordinary law of precaution regarding damage; according to the Gemara in Bava Metzia, it seems to be part of the law governing one a mazik be-reshut, i.e., cases where the Sages permitted a certain activity despite the potential for damage that it involves, and according to the authorities listed there, there is no liability, even if it resulted in damage. It is possible that both understandings are rooted in the same idea, that the person who caused the damage is regarded as a victim of ones (unavoidable accident) regarding the damage, or that he is not regarded as one who caused damage owing to the fact that his action had been permitted. Nevertheless, we are still dealing with two different understandings.
The Shita Mekubetzet on Bava Metzia addresses this difference. The Shita Mekubetzet objects to what the Gemara says there that Rabbi Shimon and the other Tannaim share the unique position that if a person performs a certain action with permission, there is no liability if his action results in damage, from the fact that tractate Bava Kama is filled with cases where liability and exemption depend on the person's conduct. The Shita Mekubetzet writes:
Rather, it was not necessary to say regarding those who do something on their own premises and there is no negligence that they are exempt, for this is not because the court granted them permission to act…. But those who do something in a place that it is not their own, e.g., taking out manure [into a public thoroughfare] according to Rabbi Yehuda, and preparing materials in a public thoroughfare according to Rabbi Shimon ben Gamliel, where [the exemption] is only because of the permission granted by the court. And also Rabbi Shimon – even though he does it on his own premises, since he is above the other person and fire is a common hazard and it requires constant watching, but nevertheless Rabbi Shimon exempts him from liability – therefore he is counted among them….
That is to say, certain activities are done with permission and do not involve negligence, and the exemption in their regard is obvious. But there are also cases where the activity in itself is dangerous, but nevertheless the Sages saw fit to permit it under certain conditions, owing to the benefit it provides, and it is here that the Tannaim disagree. According to the Gemara in Bava Metzia, lighting an oven in one's house over an extended period of time constitutes a danger of the more problematic type, and therefore the exemption from payment for the damage caused is subject to disagreement.
The Halakha in Bava Batra was decided in favor of the Sages, that there is liability in cases of damage. The Rishonim and Acharonim on our passage question that ruling, as our passage states that if there is proper distancing he is exempt. According to what we have seen thus far, and especially if we combine the words of the Meiri on our passage with the position of the Shita Mekubetzet in Bava Metzia, it would seem that there is no question. In our passage we are dealing with a madlik be-tokh shelo, and is therefore regarded as one who properly watches over his potential hazards, whereas in Bava Batra we are dealing with a mazik be-reshut (of the court), for the constant fire is a hazard (though we noted above that our passage, as opposed to the passage in Bava Metzia, implies otherwise).
The Rif on our passage (35b in Alfasi) was the first to deal with this problem:
You might ask: What is the difference that there regarding an oven the Rabbis gave a measure, but nevertheless if he causes damage, he pays for the damage, whereas here he is exempt? This is not difficult. Here where he lit [the fire] because of the need of the hour, and he distanced himself as necessary, and the fire spread past its limit and caused damage, it is an ones, for what should he have done. Therefore it is a blow by the hands of heaven, and therefore he is exempt…. Whereas there regarding the oven, since he always lights it, he should have examined the matter – if it is a [potential] cause of damage to his fellow, he should remove the cause of damage. And since he did not do this, he was negligent, and therefore liable.
The Rif explains that in our passage we are dealing with a one-time fire, about which there is no high expectation that it will cause damage if he distances it in proper manner. Therefore he is exempt. The Rif adds that the person who lights the fire is seen as a victim of ones and the damage falls into the category of "a blow from the hands of heaven." The allowance in Bava Batra relates to a regular and common activity that a person does in his home, and this is permitted despite the expected damage. The Rif does not content himself – as we proposed – with the fact that for this reason this is a special allowance of the court that does not lead to exemption in the case of damage, but rather he says that the allowance is limited, and therefore we are dealing with negligence – the court only allowed lighting a fire with proper supervision even while it is burning, and if the fire spread, this is a sign that the person did not watch over it properly, and he was negligent.
According to this, it turns out that Rabbi Shimon and the Sages there do not disagree about the connection between the allowance granted by the court and the exemption from paying, but rather about the degree of protection that is provided by the measures of distancing. According to this the passage in Bava Metzia 118 requires further study, for it connects the position of Rabbi Shimon to the opinions of the other Tannaim regarding a mazik be-reshut, only that, as we have already suggested, in any case the passage there sees the issue differently than does our passage.
In contrast to the Rif, the Ketzot ha-Choshen (155, no. 1) suggests that the lighting of a fire in one's house in Bava Batra involves taking a certain risk that the Sages permitted, and even though the person is not considered negligent according to the Sages, he must still share the burden of the damage. (According to what we said above, the Ketzot's approach accords better with the passage in Bava Metzia, and the approach of the Rif accords better with the passage in Bava Kama.)
According to the Ketzot there are three different situations: 1) Where the damage is close to certain, and therefore the activity is forbidden even if the person intends to pay for any damage (e.g., lighting a fire inside a house without proper distancing); 2) Lighting a fire that is not expected to turn into a conflagration (like lighting a fire at the distances required by our mishna); 3) Lighting a fire with certain protections, though there is still concern that it might lead to a conflagration, which is permitted, and about which Rabbi Shimon and the Sages disagree as to whether there is an obligation to pay after the fact. The law is in accordance with the Sages, that the financial burden of the damage falls upon the person who caused the damage, even though he acted with permission. In the previous shiur we proposed an explanation for this position, that liability for damage does not necessarily depend on wrongful conduct on the part of the person who caused the damage.
We find a source for the Ketzot's approach, which differs from that of the Rif and many of the Rishonim, in Responsa ha-Rosh (108, no. 10):
Surely he was not negligent with his fire, for he watched over his coal as stated by the Sages. For had he been negligent with his fire, Rabbi Shimon would not have said: These measures were only laid down with the idea that if after observing them, he still causes damage, he is not liable to pay… Rather the Sages only required that one distance a hazard in accordance with the damage that it usually causes, and they warned him against making the damage more likely, that if nevertheless it causes damage, he will be liable to pay.
The Rosh disagrees with the Rif's approach, that the liability according to the Sages is based on the lighter's negligence, arguing that according to this it is difficult to understand the viewpoint of Rabbi Shimon (earlier we explained according to the Rif that Rabbi Shimon and the Sages disagree about the degree of protection that is provided by the measures of distancing). He adopts an approach that accords more with the passage in Bava Metzia and less with our passage, that they disagree about the monetary liability of one who causes damage with the permission of the Sages.
If so, we can say that there are, as it were, two camps: In one we find our passage, the Rif and the Netivot, whereas in the second we find the passage in Bava Metzia, the Rosh and the Ketzot. According to the first camp, the liability according to the Sages is based on negligence and the exemption according to Rabbi Shimon is based on a different assessment of the effectiveness of the protection provided by the required distancing; whereas according to the second camp, the liability according to the Sages is based on the fact that even though he acted properly, it is nevertheless justified that the burden should fall upon him, and the exemption according to Rabbi Shimon is based on the fact that a mazik be-reshut is not considered as having caused damage (or alternatively, that this too is considered watching, or formulated differently, the very enactment that permits a certain conduct also includes an exemption from payment, for otherwise people will refrain from the positive conduct, and the enactment will turn out to be meaningless). Since the law is in accordance with the Sages, there might be a practical difference in a case where we know that there was no negligence, e.g., where it is agreed that the person watched over the fire, but did not succeed in extinguishing it with reasonable means – according to the Rif he should be exempt, whereas according to the Rosh and the Ketzot he should be liable.
Fire damage on Chanuka
From here let us move on to the closing passage of the chapter, which includes the sole mention of Chanuka candles in the entire Mishna. In the mishna the anonymous first Tanna and Rabbi Yehuda disagree about a shopkeeper who left a Chanuka candle outside his shop and it led to a fire; Rabbi Yehuda says that he is exempt, whereas the anonymous first Tanna, whose position has been accepted as the Halakha, maintains that he is liable. Let us try to understand the two positions and the point about which they differ.
In the Gemara Ravina tries to learn from Rabbi Yehuda's position that there is a mitzva to set the Chanuka candles within ten handbreadths of the ground, for otherwise he should have set them above the reach of the camel and its rider. The Shulkhan Arukh in Hilkhot Chanuka rules in accordance with Ravina, despite the fact that the Gemara rejects Ravina's proof, for Rabbi Yehuda's position can be understood even if the Chanuka candles can be set above ten handbreadths: "Since he was occupied with the performance of a mitzva, the Rabbis did not make it so troublesome to him." This formulation is a bit difficult: Does a person who is occupied with the performance of a mitzva enjoy sweeping immunity that allows him to perform it however he pleases without taking anything else into account? Perhaps this argument should be understood as it is cited in the parallel passage in tractate Shabbat: "Perhaps if he is put to too much trouble, he may refrain from the [observance of the] mitzva." That it to say, we are concerned about the performance of the mitzva, for if a person knows that he will bear liability if he does not sufficiently raise the Chanuka candles, he might abstain from the mitzva. However, since the Halakha has been decided in favor of Ravina, there is room to say that according to the conclusion even Rabbi Yehuda's position can be understood as based on the fact that the Chanuka candles must be set within ten handbreadths of the ground.
Why then does the anonymous first Tanna of the mishna impose liability if one is obligated to set the candles within ten handbreadths of the ground? The Rambam (Hilkhot Nizkei Mamon 14:13) explains as follows: "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 Chanuka lamp, for he should have sat [there] to guard it [from causing damage]." The Rambam explains that even if we permit the shopkeeper to light his candles, there is nothing preventing him from supervising them during the period that they must burn. Rabbi Yehuda is presumably aware of this possibility, but he maintains that the shopkeeper is not obligated to watch over the candles.
Why is this so? Perhaps this is considered a bother that is liable to cause him to refrain from performing the mitzva. But are we to understand that owing to concern about the neglect (or less than optimal performance) of a Rabbinic mitzva, Chazal enacted according to Rabbi Yehuda that people who cause damage to others should be exempt from liability? It stands to reason that according to Rabbi Yehuda the allowance to light candles outside means that Halakha's position is that on the days of Chanuka at candle-lighting time candles burning outside is a legitimate and expected phenomenon, and therefore it is not perceived as a "hazard," and it falls upon the passers-by to expect it. On the contrary, passers-by fall into the category (in a borrowed sense) of "whenever the plaintiff himself acted unlawfully, the defendant, though guilty of misconduct, is exempt from liability" (Bava Kama 20a). There is even room to say that they instead should be liable for the damage caused by the fire at that time, that is, that they should be treated like the camel-owner whose flax entered the shop.
Attention should be paid to the fact that in the laws of damage in general, and in the public domain in particular, great weight is attached to normal conduct, that it is not seen as a "hazard," in contrast to behavior that veers from the norm. Regarding our matter, Rabbi Yehuda and the anonymous first Tanna of the mishna disagree about this point. The first Tanna does not necessarily maintain that the performance of a mitzva cannot impact upon the definition of normal human behavior in the public domain – surely the performance of mitzvot is a legitimate human activity. But according to the first Tanna of the mishna, since it is possible to supervise the fire, the Sages did not see a need to allow the mitzva to effect the definition of normal behavior, and they kept the lighting of a candle in the category of exceptional human conduct.
Rabbi Yehuda disagrees and says that in order to protect the observance of the mitzva, candle lighting is defined as part of normal activity in a public domain at those hours, and therefore it does not fall into the category of damage. It seems to me that great significance is attached here to the public dimension of the mitzva. It stands to reason that outside Eretz Israel where non-Jews constitute the majority, even Rabbi Yehuda would agree that lighting candles outside veers from normal human activity, and there would be no room to exempt a person from the damage the candles cause, and it falls upon him to supervise his candles that they should not cause damage.
On the other hand, what is the law according to Rabbi Yehuda in Eretz Yisrael with respect to candle lighting that does not constitute a mitzva? The Sefat Emet touches upon this point in his commentary to the parallel passage in tractate Shabbat:
A doubt arises concerning a shopkeeper who lights a candle not for the sake of the mitzva of Chanuka, whether he too is exempt, for in any event the camel owner was also guilty of negligence, because on Chanuka he should not have carried such a large bundle. But since he was precise to say: "In the case of a Chanuka candle, he is exempt," the implication is that merely on Chanuka he is liable, for if not he should have said: "On Chanuka he is exempt."
The Sefat Emet's conclusion that the exemption is limited to a candle with which one performs a mitzva accords with a precise reading of Rabbi Yehuda's statement and with the discussion in some of the passages that deal with his position. But why in fact should we not say that it is the flax owner who is the negligent party in a situation that has changed in the wake of the mitzva of Chanuka candle lighting? It stands to reason that the change in the definition of the activity is not as strong as other human changes, and we still require the status of doing something with permission, which is limited to someone who actually lights a candle that is a mitzva. The matter still requires further examination.
In conclusion, I wish to note that the Gemara earlier in the tractate (p. 30a), in the context of one of the main passages dealing with one who causes damage with permission, proposes at one stage that Rabbi Yehuda maintains that one who causes damage with permission is liable to pay. The Gemara responds to this proposal with the following discussion:
But did we not learn that Rabbi Yehuda says: In the case of a Chanuka candle he is exempt because it was placed there with permission? Now, does not this permission mean the permission of the court? No, it means the sanction of [the performance of] a mitzva, as it was taught: Rabbi Yehuda says: In the case of a Chanuka candle there is exemption on account of the sanction of [the performance of] a mitzva. Come and hear: In all those cases where the authorities permitted nuisances to be created in the public domain, if damage results they are liable to pay. But Rabbi Yehuda exempts. Rav Nachman said: The mishna refers to the time when it is not the season to take out manure….
Rabbi Yehuda's position in our passage is cited as proof that he exempts in a case of damage. This is based on the assumption that it suffices that the activity be performed "with permission" in the relatively simple sense of the permission of the court, that is, an activity that the court views as legitimate. The Gemara rejects this argument and says that there is a special category of "sanction of the performance of a mitzva." Indeed, the next source cited by the Gemara clarifies that indeed Rabbi Yehuda maintains that one who is mazik be-reshut is exempt from paying. Accordingly there is room to ask whether his exemption in our passage is part of his general position, or perhaps it is limited to the matter of a mitzva. In my opinion, in light of everything that was said above, it seems that the exemption is uniquely connected to the mitzva in the manner that we have explained (see the Rashba's wording in his comment to our passage: "In the case of a Chanuka candle he is exempt because he acted with permission, that is, with the sanction of the performance of a mitzva").
Sources for Hakoness – Shiur #12
Rav Ezra Bick
Concealed goods that were damaged by a Fire (61b-62A)
Mishna, 61b, "Ha-madlik et ha-gadish," until the end of the Gemara 62a.
[The shiur will deal primarily with the law governing concealed goods that were damaged by a fire, which is discussed in the first part of the Gemara, until: "Amar Rav sham'it milta de-Ri"].
Gemara, 60a, "Kama lama li… komot."
Gemara, 23a, "Amar Rav kashya… kalu lo chitzav." Rashi, ad loc., s.v. heikhi; Tosafot, ad loc., s.v. tamun.
Sefer ha-Yashar le-Rabbeinu Tam, no. 535 (Machloket R. Yehuda… be-hakhi patur").
(Translated by David Strauss)
 The Ritva in Bava Batra adds that the Sages enacted relatively minor precautions with respect to lighting a fire in one's house, so as not to impose excessive limitations on reasonable household activity. The price is that once a fire is lit it must be supervised. It is interesting to note that the Netivot ha-Mishpat (155, no. 1) explains the Rif's distinction between a one-time fire and a regular fire not as it would appear from a simple understanding of the Rif, that a regular fire is more dangerous; but rather that regarding a regular fire it would not have been possible to demand the same degree of precaution that is required for a one-time fire, for this would have excessively restricted freedom of action in one's house. Thus it was necessary to accept a more modest degree of precaution, which necessitates supervision over the fire after it is lit.
 It should be noted that the Rosh on our passage does not cite the Rif's answer.
 This is also the ruling of the Rambam and the Shulchan Arukh. In the Rif on tractate Shabbat (9b in Alfasi), a ruling in accordance with the viewpoint of Rabbi Yehuda is cited in brackets.
 Shulchan Arukh 671:6, and see there Mishna Berura, no. 27.
 Proof for this may be found in the Gemara on p. 32a, where a law is cited that was accepted as the Halakha, even though we rule in accordance with the first Tanna in our passage. I wish to cite this law as it was formulated by the Rambam in Hilkhot Chovel u-Mazik (6:9): "When two people were proceeding in the public domain, one of them was running and one was walking, and one was injured by the other unintentionally, the one who is running is liable, for he is departing from the norm. If it was Friday afternoon, during bein ha-shemashot (after sunset but before twilight), when the collision took place, he is not liable. For he has permission to run at that time, so that Shabbat will not enter when he is not ready to accept it."
That he was running when Shabbat was about to enter seems to be critical (see Hagahot Maimoniyot, ad loc.: "And specifically that mitzva, during bein ha-shemashot, where he has no time. But for other mitzvot, e.g., where was he running to a study hall or to a synagogue, where he has time, if he caused damage, he is liable"); and therefore it is defined as normal human behavior at that time, and the person who was running is not seen as departing from the norm.
I am aware of the fact that it is possible to argue that the whole law of departing from the norm and normal human behavior may only be relevant to damage caused by the person himself and not to damage caused by fire, and that this is the distinction according to the Sages, but in my opinion there is no clear distinction between the two realms.
 On the contrary, this is the idea of publicizing the miracle, that a person goes and performs the suprising act of lighting candles outside (with utmost caution, of course), not for light or any other useful purpose, and in this way he testifies to the wonders of God.
 Rabbi Yehuda would not say this about a mitzva whose natural place of performance is not in the public domain. Thus, for example, the Rashba understood according to the Yerushalmi (compare with Tosefta 6:13), that Rabbi Yehuda agrees that there is no difference between one who erects his sukka in the public domain and one who sets up some other obstacle there.
 See also the Gemara in Bava Metzia 118b mentioned earlier in the shiur, which collects the positions according to which one who is mazik be-reshut is exempt from liability, and examines the view of Rabbi Yehuda in our mishna in this context.