Lesson # 321 (damages, part 9;
Arson, 1) • In a prior lesson we stated that there are four different types of damages. Two are animate - man and animal; two are inanimate - fire and pit. In prior lessons we discussed damages cause by animals and by pit. We are now beginning a discussion by damages caused by “fire” or as it is sometimes called “arson”. (In some legal systems the term “arson” denotes a deliberate setting of a fire to someone else’s property. I have used the term in both a deliberate and inadvertent burning of someone else’s property. Fire is one of the major classes of torts. The Torah states: “If a fire should go forth and find thorns, and a stack of grain or standing crop or a field is consumed, the one who kindles the fire shall make restitution” (Sh'mot 22:5). There is no difference in this tort whether Reuven deliberately sets fire to Shimon’s premises, or he is just careless and the fire that he kindles on his own premises or elsewhere somehow makes its way over to Shimon’s premises. The tort of fire is different from the other torts in that the other torts cause injury to Shimon or his animal or damage to his property where the torts are committed. In the case of pit, the tort is committed by Reuven’s pit where he dug it. In the tort of fire the tort is often committed not where the fires was set, but rather where the fire spreads on its own depending on wind direction and or availability of combustible material. Thus in the tort of fire there is another element (or force, in the language of the Rabbis) intermingled with the fire, that of wind. The damage may thus take place a far distance from where Reuven lit the fire. Reuven kindles a fire that spreads to Shimon’s property where it burns wood, stones or earth. (Sometimes the fire scorches the earth to the extent that it cannot be sown.) Reuven must pay for it. Since the tort is different from other torts, it is likened in Rabbinic literature to Reuven shooting his arrow at Shimon’s property and the tort is thus committed. Assume that Shimon sees that a fire is approaching his property and has the ability to divert or extinguish the flames. Reuven prevents him from extinguishing the flame. One opinion holds that Reuven is not liable and another holds that he is liable. There may be a difference in result depending upon where the fire was started. If Reuven kindles a fire on his own premises he must do so at a distance far enough away from Shimon’s premises that would prevent the fire from spreading there. If Reuven does so, he is not liable if the fire spreads to Shimon’s premises and causes damage. In such case the spreading of the fire is considered an act of God and Reuven is free of liability. Very often, the distance will depend upon the intensity and the height of the fire. Beth Din will have to determine if the distance was adequate also taking into account whether there was combustible material and/or shrubbery on the ground surrounding the area where the fire was started, the height of the fire, and other matters that would retard or spread the flames. If the fire that Reuven kindles is not an adequate distance from Shimon’s property and it causes damage to Shimon’s property, Reuven is liable for the full damages caused by the fire. If the distance as determined by Beth Din was adequate, and yet it spread to Shimon’s property and caused damage, then Reuven is not liable and the loss is attributed to an act of God. The spreading of a fire is also attributed to an act of God if it leaps across a river or other watercourse that is eight or more cubits wide (about 12 feet). In such an instance Reuven is exempt from liability. There is an opinion that the eight cubit test is applicable to a riverbed even if there is no water in it at the time. According to this latter opinion, if there is a river on the path of the fire it is considered a retardant of the fire no matter how small the river is. Assume that Reuven has a wall on the boundary between his property and Shimon’s property. The wall is capable of preventing a fire from crossing from Reuven’s property to Shimon’s property. If a fire kindled by Reuven leaps over the wall, Beth Din will take into account the height of the wall and type of terrain. Beth Din will consider if there is normally wood, vegetation, thorns or other matter that is flammable in the vicinity. If it finds that under the circumstances the fire would not have spread, Reuven is not liable to Shimon. However, if the fire was likely to spread, Reuven is liable even if the fire spreads great distances. Reuven’s courtyard catches on fire. The fence separating Reuven’s premises from Shimon’s premises could have prevented the fire from spreading to Shimon’s premises. However, the fence fell down independent of the fire. If Reuven could have reinstalled the fence before the fire spread but failed to do so, he is liable to Shimon. If Reuven did not know that the fence had fallen down, of if he did know but did not have sufficient time to reinstall the fence, he is not liable to Shimon for damages. In all of these situations in which Reuven is liable, if he sees the fire approaching Shimon’s property and he can stop the fire from spreading there, but Shimon prevents Reuven from saving Shimon’s property, Reuven is not liable. If Reuven kindles a fire on Shimon’s property, even if there is no likelihood of the fire spreading, Reuven is liable if the fire does spread, no matter how far. Reuven is liable if the fire spreads from Shimon’s property to Levi’s property, no matter how far away it is. The general rule is that if Reuven asks Dan to perform an illegal act and Dan does it, Dan is liable and not Reuven. The rationale for this is that if the Torah tells Dan not to do the illegal act he should have heeded the Torah and not Reuven. Reuven gives a flame to Dan, a normal person, and because of Dan’s conduct the flame catches on combustible material. It spreads to Shimon’s property. Dan is liable. If Dan does not have the assets to pay Shimon, Reuven is liable to the judgments of Heaven. (When a person is liable to the judgments of Heaven, he is not forgiven by Heaven until he makes restitution to the victim of his acts. The law is the same if Reuven asks Dan to act as a bailee and take care of the fire. The fire then spreads to Shimon’s property; Dan is liable and not Reuven. Reuven instructs a deaf-mute, or a mentally deficient person or a minor to set fire to Shimon’s property. If the person does so, Reuven is liable. Very often in Jewish law these three categories of persons have been linked together as individuals not legally liable for their acts. The topic of arson shall IYH
continue in the next lesson. [The Parshat
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