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Shabbat Parashat Ki Tavo 5775

Ask the Rabbi: Indirect Fire Damage

Rav Daniel Mann

Question: We went away and lent out our apartment for Shabbat. Due to the guest’s gross negligence, a fire broke out that caused significant damage. Our sefarim were actually more damaged from water than fire/smoke, as I will explain. Good-hearted people (=sprayers) sprayed down the sefarim with water in a way that may have been unnecessary. I will not make claims against them, but can I demand that the guests pay for water damage they did not do? (They feel very bad and, despite not being rich, want to pay everything they should.)

 

Answer: May Hashem make up your losses and reward both parties for their good intentions under trying circumstances.

We will assume in this discussion what we do not know – that the guests were at least causatively responsible (gerama) for the damage, including from water, which was at least an understandable course of action by the sprayers. In many cases of gerama, the damager (mazik) has a moral obligation to pay (chiyuv latzeit y’dei shamayim – see Bava Kama 56a). However, one should not demand pay unequivocally when there is only a moral obligation (K’tzot Hachoshen 75:4). Therefore, you must determine before making claims how much you believe the guests owe in legal, not just moral, terms. Of course, realize that we have heard only your presentation and can say nothing conclusive, other than what we think you can ask for based on your version of the story. Your guests have every right to present their version to a halachic expert of their choice, and you will then see if there is a need for dispute resolution. This is very healthy when people do it in the right spirit.

If the sprayers acted in a way that professional firefighters would have, then the guests would be obligated to pay even for water damage. It is not only the direct damage one causes that one is responsible for, but even the continuing naturally results. This is similar to the halacha of one who wounds another and must pay for new medical problems that develop later from the old ones (Bava Kama 85a).

What if the spraying was uncalled for? The closest Talmudic precedent we found regarding such third-party damage is the gemara (Sanhedrin 74a), regarding damage done while trying to prevent murder. The attempted murderer is exempt from payment due to the fact that he is simultaneously subject to being legally killed to save his would-be victim (see Sanhedrin72a). If a third-party savior damages someone’s property during his efforts, he is exempt due to a special Rabbinic enactment to not discourage people from helping. This implies that according to standard halachic rules, he is considered the mazik. Similarly your sprayers appear to be the mazikin regarding water, although they likely fall under the exemption of the above enactment (see Chiddushei Anshei Shem, 44a of Rif, Bava Kama). The simple reading of the sugya is that the attempted murderer who precipitated the need for strong action is not a candidate for being obligated to pay. Thus, in your case, the mazikin for waterlog damage are the sprayers rather than the guests.

However, there is a different reason to obligate the guests – they were shomrim (watchmen). While shomrim are generally not obligated for damage to land, including houses (Shulchan Aruch, Choshen Mishpat 301:1), that applies only to that which is connected to the ground. However, there is cause to obligate them for the sefarim, which are movable. If guests’ negligence caused valuables to be stolen, they would be obligated to pay, as this preventing theft is within the implied responsibilities of one who “borrows a house.” Similarly, the guests are obligated for both fire and water damage to sefarim that their negligence caused. (The mechanism is halachically complex – see Shulchan Aruch, CM 291:5; Pitchei Choshen, Pikadon 2:(47)).

One thing to be careful about when making demands is estimating value. Halacha grants compensation for the drop in value of the damaged property, which often does not suffice to replace with new items (Shulchan Aruch, CM 387:1).

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