Bava Kama (1:1) | Jeremy Herz | 16 years ago

Seder Nezikin begins with Masechet Baba Kama. The first Mishnah enumerates the four primary categories of civil damagers - the ox, the pit, the mav’eh1 and the fire. These torts provide the basis for the vast remainder of the Masechet.

The third Mishnah of the second perek describes a case in which a dog takes a freshly cooked piece of cake which still has hot coals attached to it. The dog then lays it on a haystack, which subsequently ignites. This case raises a fundamental question in the Gemara – what is the nature of damage caused by fire?

According to Reish Lakish, fire is considered one’s property. R’ Yochanan argues with this view, maintaining that the actual flame within a fire is not substantive and therefore cannot be owned. He holds that fire is comparable to one shooting arrows. That is, the individual who ignited the fire is thought to be continually lighting fire, as it were, just like the arrow has behind it the constant metaphysical force of the shooter. Reish Lakish rejects this opinion, arguing that fire moves on its own.

Rashi offers a practical difference between the two views. According to Reish Lakish, if coal that is not owned by the lighter is used, he would not be liable for the damage of the fire, as it is not his property. Contrarily, R’ Yochanan would hold that he is liable because the lighter gave the fire its force. This interpretation of Reish Lakish is questioned by the Tosfot (s.v. eisho mi’shum mamono), who hold that even if one did not “own” the fire, he would still be liable for kindling it.

There is a famous question asked on R’ Yochanan’s approach. The Nimukei Yosef2 asserts that if fire is considered to be continually lit by the igniter, how can we light Shabbat candles close to Shabbat? It would be as though one is actually engaging in lighting the fire on Shabbat! He answers that the continued existence of the flame, and similarly the trajectory and impact of the arrow, are traced back to their point of initiation, which is the very point in time that the liability arises.

The Ohr Sameach questions this answer, noting that according to this conception of R’ Yochanan’s opinion, Tisha B’Av should really be commemorated on the ninth day of Av, for the first arrows were launched by our enemies on the ninth of Av. The ensuing destruction on the tenth of Av, albeit the day on which the brunt of the damage occurred, was merely an extension of that original act. However, in Taanit (29a), R’ Yochanan says that had he have lived in the generation of the destruction, he would have instituted the day of mourning on the tenth of Av.

R’ Tzvi Pesach Frank answers that the Nimukei Yosef’s response only pertained to the time at which liability arose, not to the time at which the object (in our Mishnah’s case the haystack) was burned. It would be absurd to suggest that the haystack was already consumed from the time the coal was placed on it – it obviously took time to burn.

Similarly, there are two angles from which we can understand Tisha/Asara B’Av. On one hand, we could perceive the day to be more focused on revenge and a commemoration of what our enemies did to us. This would justify choosing the ninth of Av as a day of mourning. Alternatively, it may be considered a day solely of mourning, on which we lament the destruction of our Holy Temple – for it was on this day, the tenth of Av, that the Beit Ha’Mikdash was actually razed.

Therefore, when R’ Yochanan says that “TishaB’Av should have been instituted on the tenth of Av, he is not undermining his position with regard to eish.3 Rather, he is adopting a stance concerning the mourning in Av that is completely independent of the “arrows” shot by our enemies and accordingly unrelated to the din of eish.

1 Some say this is a human who personally injures another – adam hamazik. Others say this is shein – when an ox eats from another’s property.

2 10b

3 According to the Nimukei Yosef’s understanding of R’ Yochanan.


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