Question
As we do every year, our shul built a bonfire this Lag Bo’omer and honored our rabbi with lighting the bonfire. The rabbi, who is in his eighties and quite stooped, did not check whether the bonfire was built properly and lit it in the presence of the gabboim and many congregants. After a while the rabbi departed and eventually the fire damaged a neighbor’s property. Who is liable for the damages, the rabbi or the congregants?
Answer
There are two reasons the rabbi is not liable.
One reason is that we find in the Gemoro that a watchman is not only liable for damages to the object over which he is watching but also for damage done to others by the object over which he is watching. Thus, the Mishna (BK 44B) writes that if someone is a watchman over an ox and the ox damaged another ox it is the watchman who is liable for the damages and not the owner. Similarly, one who is responsible to watch over a fire is liable for the damages that ensue from his failure to properly watch over the fire.
The Gemara (BK 9B) discusses the rules that govern who is liable when a person gives his burning coal to a child to watch. The reason this is an issue is because children are not reliable watchmen and, on the contrary, at times they may make matters worse when they are given access to a coal.
Based on this Gemoro, the Rambam and SA (CM 418, 8) rule that if an adult is charged to watch over a fire, he is liable for the damages that were suffered by others as a result of his failure to properly watch over the fire. The rules for when a watchman is liable for damages are the same as the rules for when the one who set the fire is liable.
Since it was obvious to everyone that the rabbi was not going to stay and watch over the fire and the people only meant to honor the rabbi to light the bonfire, the gabboim who honored the rabbi are the ones who were obligated to watch the fire and if they were derelict in performing their duty they are the ones who are liable for the resultant damages.
This is similar to the Gemoro’s (BK 50A) case where a person dug a pit in public property in order to supply water to the public. The Gemoro rules that he is absolved from liability for the pit when he informs the public authorities that they can have the pit for public use. In your situation, the rabbi did not even need to say anything since the bonfire was never his but was the public’s from the beginning and he was merely accorded the honor of lighting it on their behalf. Therefore, they remained responsible for the wood just like they were responsible before it was lit.
A second reason the gabboim are liable and not the rabbi is because the rabbi relied on the gabboim to ensure that the pile of wood was constructed in a manner that would not pose a danger to others. Thus, if the rabbi would somehow be forced to pay for the damages (e. g. the irreligious municipality fines the rabbi) the gabboim need to reimburse the rabbi.
The source for this liability is the Gemoro (BK 99B) that rules that if an expert in coins made a mistake and told a seller that the coins that his customer wants to give him are genuine when in fact they were counterfeit, the expert is liable for the seller’s loss, since this type of causative damage falls into the category of garmi. There is a dispute among the Rishonim if, in order for the expert to be liable, it is necessary for the seller to inform him explicitly that he will rely on his judgment. The Shach (306, 12) rules like the Rishonim that it is necessary to inform the expert. However, he states that if it is obvious that the seller is going to rely on the guidance of the expert, it is not necessary for the seller to state explicitly that which is obvious.
Thus, for example, the Mishpat Hamazik (1, 17, 16) rules that if a mechanical engineer submits plans to a builder and, after the building was built, the builder needed to demolish part of the structure due to an error in the engineer’s calculations, the engineer is liable for the builder’s loss since it was obvious that the builder was going to rely on the engineer’s calculations.
Similarly, in your situation it was obvious that the rov was not going to check if the wood was piled in a safe manner and he was going to rely on the gabboim that the woodpile was safe to light. Therefore, it was the responsibility of the gabboim to ascertain that the pile was safe before telling the rabbi to light the bonfire and since they didn’t fulfill their responsibility they are liable for the resultant damage, that they caused.
We should note that the issue of garmi is very subtle and one must be careful when to apply it. For example, the SA rules that even if a person who sold seeds knew that the customer wanted to plant them, yet if it turns out that the seeds were defective and did not produce a crop the seller does not have to reimburse the customer for all his expenses. Even though the seller must refund the customer’s money since the sale is a mekach to’us, he does not have to reimburse the customer for the additional expenses he had from planting the defective seeds.
The poskim ask that why this is different from the case where the expert said the coins were genuine? The Hamakne (EH 50, 8) answers that when one sells seeds he does not explicitly say that the seeds are good and that the customer can plant. Therefore, the customer should do more to check out if the seeds really are fit for planting. However, when the expert said that the coins were genuine he gave the final word that the seller can accept the coins and allow his customer to leave.
In your case as well, when the gabboim gave the rabbi the torch to light the bonfire they were telling the rov to light, which is like the seller telling his customer that he can plant. Therefore, they need to reimburse the rov for any losses that he incurs as a result of his reliance on them.
We should note further that since the gabboim were negligent it is their personal responsibility to pay for the damages and it is not an expense of the congregants. Therefore, the gabboim cannot use the shul’s funds to pay for the damages.
In conclusion: It is the gabboim, who were in charge of the bonfire, who are personally liable for the neighbor’s damages and neither the rabbi nor the congregants need to pay for the damages.
