Yesterday, we noted the question addressed by a number of poskim regarding the legal status of the oil used for the Chanukah lights during the first half-hour after lighting. We saw that according to one opinion, since one who lights the candles fully expects them to burn for the minimum required duration of a half-hour, he implicitly disavows ownership over the oil, as he does not expect to ever use it again. Therefore, if the candles are extinguished within a half-hour, as Halakha does not require lighting the candles anew (Shulchan Arukh, O.C. 673:2), it would seem that anyone can take the oil, which is legally ownerless.
As we saw, however, Rav Yehuda Leib Graubart, in his Chavalim Ba-ne’imim (3:35), disagrees with this ruling, noting several reasons why one who lights Chanukah candles does not implicitly disavow ownership over them. Rav Graubart draws proof to this conclusion from the discussion in the Mishna (Bava Kama 62b) concerning the case of an animal transporting cargo which catches fire from a candle lit in the public domain. Rabbi Yehuda rules that if the cargo caught fire from one’s Chanukah candles which were lit outdoors, as required, then the owner of the candles is absolved of liability, because he had placed his candles there permissibly, in fulfillment of the mitzva of Chanukah candles. The majority view, however, disagrees, and holds the candles’ owner responsible for the damages.
Rav Graubart observes that the very prospect of liability for damages caused by one’s Chanukah candles would seem to prove that one remains the owner over the candles after he lights them. The Gemara in Masekhet Bava Kama (22a) brings a famous debate between Rabbi Yochanan and Reish Lakish concerning the nature of liability for damages caused by a fire which one kindles. Reish Lakish maintained that “eisho mishum mammono” – one bears liability for damages caused by his fire just as he bears liability for damages caused by his property, such as his animals. Rabbi Yochanan, by contrast, felt that “eisho mishum chitzav” – one who kindles a fire which ends up causing damage is akin to one who shot an arrow and caused damage to somebody’s property from a distance. Whereas Reish Lakish views fire damage as similar to damage caused by one’s animals, Rabbi Yochanan views fire damage as indirect damage caused by the individual himself. Rashi, in his commentary to Bava Kama, asserted that according to Reish Lakish, if one kindles a flame using somebody else’s materials, then he is not liable for damages caused by the fire, as liability for fire damage is rooted in one’s responsibility for his property. If the fire one kindles is not his property, then, according to Reish Lakish, he is not held responsible for the damage it causes. (Rashi implies that this understanding of Reish Lakish’s position is not accepted in the Gemara’s conclusion, but the Penei Yehoshua, as Rav Graubart cites, explains that this is, in fact, the Gemara’s conclusion.) Seemingly, Reish Lakish’s view would mean that one would not liable to damages caused by his fire if he implicitly disavows ownership over it after lighting. Since he does not own the materials at that point, he would not incur liability if the fire ends up causing damage. Hence, the fact that the Tannaim debate the question of liability for damages caused by one’s Chanukah candles placed outdoors might prove that one retains ownership over the Chanukah candles after lighting them. As such, if they are extinguished, the materials still belong to the original owner, and may not be taken by others.