April 16, 2024
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Linking Northern and Central NJ, Bronx, Manhattan, Westchester and CT

May these words of Torah serve as a merit le’iluy nishmat Menachem Mendel Ben Harav Yoel David Balk a”h.

Bava Kamma 18

A candle fell on a sleeping man, his dog pulled the candle away from him and onto the neighbor’s roof; did the owner of the dog have to pay for the damage the candle caused?

Rav Zilberstein addressed the following scenario. A man who lived in a second-story apartment was sleeping on his porch. His pet dog was sitting next to his lounge chair and guarding him. A candle was lit on the table next to the bed. Suddenly, the candle fell on him. The dog sensed the danger. It jumped, grabbed the candle, and dragged it away. It dropped the candle off the porch and onto the roof of the first-floor apartment. The rafters of the roof caught fire. The roof was destroyed in the ensuing conflagration. The person woke up. When he realized what had happened he praised the Almighty for endowing his dog with the wisdom and foresight to save his life from death by fire. Did the owner of the dog have to pay the owner of the first-floor apartment for the damage that was caused?

Bava Kamma 18 talks about a fire set by a dog. The discussion occurs in the midst of teaching about tzerorot. Tzerorot refer to pebbles that an animal propels through the air by stepping firmly on the ground, that damage what they land upon. An owner of an animal must pay full damages when his animal tramples on an object. However, if his animal propelled an object, and damaged with his force instead of his body, it is called tzerorot. According to the Sages, in a case of tzerorot, the owner of the damaging animal pays half damages, while Sumchos was of the opinion that the animal owner must pay full damages. On Bava Kamma 18, the Gemara mentions a case of a dog who seized a flaming piece of toast that belonged to a friend, it ate the bread, and set off a fire that consumed the hay pile of the neighbor. The Gemara taught that the owner of the dog must pay full damages for the bread. It is normal for an animal to eat bread. A dog eating bread is in the category of shein hamazik, the damager of tooth, and for that there is full liability. However, for the hay pile, the owner of the dog merely pays half its value. A fire is not the body of the dog. A dog who brings flames to a location is damaging with his force, like an animal who propels a pebble from his steps. Chachamim are of the opinion that in cases of tzerorot the animal owner must pay half the damages; so, too, here, he must pay for half the value of the hay pile.

Presumably, our case is similar to the scenario of the Gemara. The dog that set fire to the downstairs roof is like a dog who sets fire to a pile of hay. The owner of the dog should owe the half-damages of tzerorot.

Rav Zilberstein suggested that in his scenario the owner of the dog would be completely exempt. In the Gemara’s case, the dog was performing the damage of shein when he set off the fire. However, when the candle fell on the sleeping man, the dog did not perform an act of damage. There was no intent to damage, so it was not the damager of keren; it was not a routine act, so it was not the damager of trampling, regel; and it was not an act done for its appetite, so it was not shein. It was not an act of damage at all—it was an act of salvation. Many explain that the reason the owner of an animal who damages must pay is that he is guilty for having been negligent in not guarding his animal from committing damage. In our scenario, there was no lack of watching the animal. The animal did not do an act of damage. The animal performed an act of saving its owner. The Torah obligated the owner to pay for the destructive acts of his animals. This was a constructive act. It cannot be defined as destructive. There should be no obligation to the owner to pay at all. (Chashukei Chemed)

By Rabbi Zev Reichman

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