THE JERUSALEM INSTITUTE OF JEWISH LAW
Rabbi Emanuel Quint, Dean

Lesson # 322 (damages, part 10; Arson, 2)
Damages caused by Arson

We continue with the topic of arson.
If two persons, Reuven and Levi, simultaneously kindle a fire and the fire damages Shimon’s property, both Reuven and Levi are jointly and severally liable. That is, Shimon may sue each separately for the full damages or they may be sued together. Shimon of course, cannot collect more than the actual amount of the damages. If either Reuven or Levi pays more than one half of the damages to Shimon, each can seek compensation from the other for the amount that he has paid in excess of his share.

If Reuven first kindles a fire and Levi provides more wood to feed the fire and the fire spreads and damages Shimon’s property, then Levi alone is liable to Shimon. A flame without wood cannot continue to burn and would have burned itself out where it was kindled. Conversely, if Levi places wood on the ground and Reuven then kindles a fire next to the wood and the fire spreads to Shimon’s property, only Reuven is liable. In these two instances the second person is liable even if the first instructs the second to supply the wood or the flame. If one performs an illegal act, he is liable and cannot blame the other person who instructs him to do the illegal act. After both Reuven and Levi have provided a flame and the wood, the fire would not have spread to Shimon’s property.

here was no wind to spread the fire. Then Yehuda fans the flame so that it does spread to Shimon’s property and causes damage. Only Yehuda is liable; Reuven and Levi are free of liability. The result is the same if Reuven both kindles the flame and supplies the wood but the flame would not have spread to Shimon’s property; then Yehuda fans the flame as a result of which the fire spreads to Shimon’s property; only Yehuda is liable and Reuven has no liability. If the flame would have spread to Shimon’s property regardless of whether Yehuda fanned the flames, only Reuven is liable and Yehuda is not. When the judges in Beth Din remain doubtful as to who actually caused the fire to spread to Shimon’s property, neither Reuven nor Yehuda is deemed liable, since each can plead that he did not cause the spreading of the fire.

The Torah makes special provisions for objects that are concealed before the fire burns them. That is, concealed objects not visible to the naked eye when looking at the item that is burning. Generally, Reuven is not liable for the loss caused by his fire to concealed objects. Reuven, not intending to damage Shimon’s property, starts a fire on Shimon’s property. The fire consumes a hay stack or the like and something is hidden therein. If the haystack had in it objects that are usually concealed therein such as harnesses or farmer’s tools, then Reuven is liable for them.

If the haystack had concealed therein objects that are not usually stored in a haystack, such as articles of clothing, glassware or silverware, then Reuven is not liable to pay for them. However, if Reuven intends to cause damage to Shimon’s property, then Reuven is liable for all concealed objects, including those not usually concealed in such items. If Reuven starts a fire on his own property, it spreads to Shimon’s property, and later it burns a haystack with its contents, Reuven is not liable for the concealed contents, even if they are of a type usually concealed in the haystack. Reuven must pay the amount of hay that would have filled the space where the objects were concealed. Assume that Reuven lends Shimon an area in which to place Shimon’s haystack. Shimon makes the haystack and conceals objects in it. Reuven kindles a fire on his own property that burns Shimon’s haystack. Reuven is liable only for the haystack and not for the concealed objects therein. However, if Reuven kindles the fire on Shimon’s property or on the haystack belonging to Shimon, he must pay for the hidden objects. Reuven kindles a fire on Shimon’s property, the fire spreads and destroys a haystack and also burns a goat tied to the haystack or close to it. Reuven is liable for all the damages since it is customary to tie goats to, or close to a haystack.

However, if the goat is not tied to the haystack but is near it and was burned, Reuven is not liable.

Assume that wheat is more expensive than barley. Reuven lends Shimon a place to stack wheat and Shimon stacks barley; or he lends him a place in which to stack barley and Shimon stacks wheat; or Shimon stacks wheat and covers it with barley; or stacks barley and covers it with wheat. Reuven then kindles a fire on his own property that then burns the stack He is only liable to pay for barley in all these cases.

Reuven sets fire to Shimon’s building, He must pay for everything that is normally stored in such buildings. This would not include horses or other animals, and the like that people do not ordinarily keep in buildings. All the foregoing situations, if Shimon or Reuven can produce witnesses who can testify what Shimon kept in his house or haystack, Beth Din will rely on their testimony, and Reuven, when liable, must pay damages for those things. Lacking witnesses, Shimon, while holding a sacred object, must take an oath to what he claims was in the house or haystack and is to be paid that amount. Shimon is believed only to the extent that it is considered likely that he would own such objects or would have them in his possession as a bailee. There is an opinion that if Reuven pleads that he knows what was in Shimon’s house, and if Reuven takes a oath to the effect, he will have to pay damages only for what he admits was in the house.

Levi sees the fire that Reuven has kindled on his own property approaching Shimon’s grain stack. In trying to be helpful to Shimon, Levi covers the grain stack, which in spite of his efforts, burns. Reuven is not liable for the haystack since it is now a concealed object hidden by the cover. Levi is not liable since he is not the direct cause of the damage to Shimon. There is an opinion that Levi is liable to the judgments of Heaven. If it was Levi’s intent to spare Reuven liability for the concealed objects, Levi while not being liable to Shimon in Beth Din, is liable to the judgments of Heaven.

Assume that a fire kindled by Reuven traps Shimon so that he cannot escape the flames and Shimon dies. Reuven is guilty of murder. If Reuven places a burning coal on Shimon’s chest and Shimon could have gotten rid of the coal, but fails to do so and Shimon dies, Reuven is not guilty of murder. Assume that the fire kindled by Reuven burns Shimon, who is injured thereby. Reuven is liable for the injury suffered by Shimon and also for his loss of earnings while he is recovering, his medical expenses, his pain and humiliation. There is an opinion that Reuven does not have to pay for the humiliation suffered by Shimon. All this applies if the flame when kindled was such that it could reach Shimon and would be so great a flame that Shimon would not be able to escape it. If, however, the flame was not of such a nature, for example, it was a small flame or there was a fence that should have prevented the fire from spreading but which coincidentally fell and no longer afforded protection, then Reuven is not liable.

The subject matter of this lesson is more fully discussed in volume X chapters 418 of A Restatement of Rabbinic Civil Law by E. Quint. Copies of all volumes can be purchased via email: orders@gefenpublishing.com and via website: www.israelbooks.com and at local Judaica bookstores. Questions to quint@inter.net.il