Bava Kamma Chapter Six Mishnayoth Five and Six



The final two mishnayoth of chapter six continue to deal with damages caused by fire. We learned in the previous mishnah that a person who sets a fire is liable not just for the destruction of crops but also for the damage done to the field itself.  Mishnah five deals with damages done to various things that may be on a field.  Mishnah six deals with fires that may have been set accidentally.


Mishnah Five

1)                     If a man set fire to a stack and in it there were utensils and these caught fire:

a)                                           Rabbi Judah says:  “He must make restitution for what was therein.”

b)                                          But the Sages say:  “He need only pay for a stack of wheat or barley.”

2)                     If a kid was fastened to it [to the stack] and a slave stood near by, and they were burnt with it, he is liable.

a)                                           If there was a slave fastened to it [to the stack] and a kid stood near by and they were burnt with it, he is not liable.

3)                     The Sages agree with Rabbi Judah that if a man set fire to a large building, he must make restitution for everything therein; for such is the custom among men to leave [their goods] in their houses.


Mishnah Six

1)                     If a spark flew out from under the hammer and caused damage, he is liable.

2)                     If a camel laden with flax passed by in the public domain and its load of flax entered into a shop and caught fire, the owner of the camel is liable.

a)                                           But if the shopkeeper left his light outside, the shopkeeper is liable.

b)                                          Rabbi Judah says:  “If it was a Hannukah light, he is he is not liable.”



Section one of mishnah five contains a dispute between Rabbi Judah and the sages with regards to fire damage done to utensils that were placed inside a stack of wheat.  According to Rabbi Judah one is liable for the damage done to the utensils as well as the wheat (or barley) itself.  According to the Sages the kindler’s liability is limited to the wheat.  For the damage done to the utensils he is exempt.  Section three can help us understand the basis for this dispute.  There we learn that the Sages agree with Rabbi Judah that if one burns a building he is obligated also for the things left inside, because it is customary for people to leave things in buildings.  In comparison, we can see that the Sages think it is not customary for people to leave things in stacks of hay.  Therefore a person who burns a stack of hay is exempt if someone left in there an item that is not usually left in a stack of hay.  Rabbi Judah probably assumes that it does not make a difference if people normally leave things in the place that was burnt.  Since the person caused the damage he is liable in any case.

Section two deals with a case where a kid (small goat) and/or slave were found near or tied to the stack of hay and were burnt and killed in the fire.  We will discuss the second clause first.  Here the slave is tied to the stack of hay when he was burnt and killed.  When the mishnah says that the person is not liable, the meaning is that he is not liable for monetary remuneration.  The reason is that he will receive a more severe penalty for killing the slave.  In Jewish law there is a principle that one cannot receive two punishments for one crime.  In this case the person killed another person and caused damage to property at the same time.  For killing, the person is obligated for the death penalty and therefore he cannot also receive a monetary fine.  (For a different example see Bava Kamma 3:10).  In the first clause the slave was only near the stack but not tied to it.  Since the slave could have run away the kindler is not liable for the death penalty and therefore he will be liable for damages.

The first section of mishnah six states that if a person, for instance a blacksmith, were to strike metal with a hammer and a spark were to fly out and burn another person’s property he would be liable.

The second section deals with a scenario that is more likely than it may at first sound.  In the ancient world roads inside cities served as shopping areas, just as does the modern day “shuk” in middle eastern countries, including Israel.  The roads were generally quite narrow and the fronts of the stores were open to the roads.  A heavily laden camel walking down the road could easily fill the entire road.  According to our mishnah if the camel’s load of flax were to enter into a shop, catch fire and spread the fire to another person’s property the camel owner would be liable.  He should not have allowed his property to trespass into the other person’s shop.  If, however, the camel owner placed the fire on the outside, he would be liable.  The outside of the store is already semi-public property and he should not have put his candle out there.  The one exception to this rule is the Hannukah candle, which is supposed to be placed outside of the home.  According to Rabbi Judah, if the candle that caused the fire was in celebration of Hannukah, the storekeeper is exempt.


Questions for Further Thought:

·                      What is the basis of the Sages opinion in mishnah five?  What is the relevance of the fact that people generally leave things in their homes but not in their stacks of hay to the question of liability in this case?

·                      Why does mishnah six have to state that a person is obligated for damages caused by a spark flying out from a hammer?  Is this not obvious?

·                      Rabbi Judah in mishnah six says that the storekeeper is not liable when the candle was in celebration of Hannukah.  Do you think that in this case the camel owner would be liable?