Fire: Damages
Avot Nezikin
“When a fire is started and spreads . . . the one who started the fire must make restitution” (Shemot 22:5). A number of scenarios can result in fire causing damage. In the three cases discussed below, the person lighting the fire or fanning the flame is responsible for the damage done.
1. A person lights a fire on his own property, and it spreads beyond the fence enclosing his property and damages his neighbor’s property. The fence could not have been expected to stop the fire.
2. A person lights a fire on his own property and there is a fence which should have been able to stop the fire, but unfortunately did not.
3. A fire was already burning on a neighbor’s property. Someone fanned the flames and the fire spread, ultimately destroying the neighbor’s property.
Rav Yochanan and Resh Lakish disagree on the reason a person is liable if he starts a fire which causes damage.
Rav Yochanan states that he is liable because “his fire is like his arrows” (isho mishum chitzav). Someone who shoots an arrow is accountable for any damage the arrow does. Similarly, a person who starts a fire is accountable for any damage his fire causes. If this is correct, though, in Case 2 the person should be exempt. The fact that the fence should have stopped the spread of the fire should be the equivalent of his arrows having come to rest (kalu lo chitzav), at which point he is exempt from damages.
Resh Lakish disagrees. He maintains that fire cannot be compared to an arrow, because fire can spread on its own. Rather, the reason the fire-setter is liable is that just as a person is responsible for damage done by something he owns (like his ox), so too he is responsible for damage done by a fire he set. In other words, “his fire is like his property” (isho mishum mammono). If this is correct, though, then in Case 3 the person should be exempt since he did not set the fire. We can resolve this problem if we assume that it is the additional fire (which he caused by fanning the flames) which is considered his property that caused damage.
This disagreement is not absolute. For in some instances, Rav Yochanan agrees that one can become liable because the fire is deemed his property. For example, in Case 2, although isho mishum chitzav might not apply, the person is still responsible because isho mishum mammono applies.
If this is so, would Rav Yochanan assert that a person is liable if he fanned the flames of someone else’s fire, which then spread beyond a fence that should have been able to stop it? Commentators disagree. Some say that if neither mammono nor chitzav can apply, Rav Yochanan would exempt the person from liability.