Question
We are a local branch of a large chassidus. Every year we make a bonfire on Lag Bo’omer in the courtyard of our shteibel and auction off the honor to light the bonfire. In the past few years, it never sold for less than a thousand dollars and there was no reason to believe that we would not have earned at least that amount this year. All the wood, oil etc. was prepared for the bonfire, when one of our members walked by and carelessly threw out his cigarette. The cigarette set fire to the wood and it burned up and we were left without any wood. As a result, we could not sell the honor to light the bonfire. Is the one who threw his cigarette liable for the consequences of his action and if so, how much is he required to pay?
Answer
The one who threw his cigarette onto the woodpile is liable for the damage caused by his action because he threw a fire. Even if one only lights a fire on his own property and is careless with his fire, he is liable for the damage the fire causes, as it says in Chumash (Shemos 22, 5). Therefore, certainly if he threw fire at another person’s object, he is liable for the damage his fire causes. The Mishna (BK 62B) even rules that if a spark flew out unintentionally from under the hammer of a craftsman, the craftsman is liable for the resulting damages. Therefore, the member is certainly liable as a mazik-one who damages. The only issue to decide is how much he must pay.
He certainly must pay the value of the wood. The issue is that the value of the woodpile is low, but its destruction caused a much greater loss of potential income. The question is whether one who damages an object is liable for the owner’s lost potential income or just for the value of the object.
The Gemoro calls an object whose primary value is the income that it can produce or the loss that it can prevent a dovor hagorem lemomon-an object that causes monetary value, either by bringing in new income or by preventing a monetary loss. Thus, your woodpile is a dovor hagorem lemomon and your question is whether one who damages a dovor hagorem lemomon is liable for the full potential loss.
An example that is discussed by the Gemara (BK 98B) of a person who damaged an object that is a dovor hagorem lemomon is a thief who stole chametz before Pesach and kept the chametz over Pesach. The Mishna (BK 96B) rules that the thief may return the chametz to its owner after Pesach and thereby free himself from paying for the theft even though the chametz is now valueless since it is now chametz she’ovor olov haPesach–chametz owned by a Jew during Pesach.
This chametz has no value to anyone including its owner. Nonetheless, the thief can utilize this chametz to free him from otherwise paying for his theft. For everyone, including the thief, the chametz is intrinsically valueless but it has a causative, non-intrinsic value for the thief since it enables the thief to avoid paying out of his pocket for his theft. This is a clear dovor hagorem lemomon.
The Gemara cites the opinion of the Tanna, R. Shimon who rules that if a third party destroys the chametz he must pay the thief for the loss that he caused him. Even though the chametz had no value, since the thief could have used the chametz to save money, one who destroys it must compensate the thief for his loss. The amount of compensation is the value of the chametz at the time of the theft because that is the amount that the thief will have to pay now that the chametz was destroyed. Thus, there is a Tanna, specifically R. Shimon, who maintains that one must pay the full potential value for damaging a dovor hagorem lemomon.
The Gemara then seeks a Tannaic source for a ruling of Rabbo, an Amora, that a person who burned someone’s promissory note is liable for the damages that his victim suffered due to the loss of his promissory note. The Gemara initially suggests that Rabbo based his ruling on R. Shimon’s ruling about chametz that we described earlier, since the essence of Rabbo’s ruling is that one who damages is liable even for the non-intrinsic value of the object that he damages. The intrinsic value of the promissory note is just the value of the paper on which it was written. However, the promissory note has additional non-intrinsic value for the lender since the lender can use it to force his borrower to repay his loan. Therefore, when Rabbo ruled that one who damages a promissory note must pay for the entire value that his victim could have derived from the note, he was ruling that one who damages is liable for even for the non-intrinsic value of the object that he damaged.
The Gemara then differentiates between chametz and a promissory note, showing that R. Shimon’s ruling about chametz cannot serve as a source for Rabbo’s ruling about a promissory note. However, the Gemara says that Rabbi Meir, another Tanno who maintains that one is liable for causative damages that are classified as garmi, rules that the one who burned the promissory note is liable even for the loss of the non-intrinsic value of the note because it is garmi.
Thus, we derive from this Gemara the important principle that when one causes the owner of an object to suffer a loss of the non-intrinsic value of an object, his action is classified as garmi. Since the law is that one who damages is liable for damages that are classified as garmi, it follows that one who damages an object is liable even for the owner’s loss of the non-intrinsic value of the object that he damaged. Thus, the CM rules (386, 2) that one who burns a person’s promissory note must pay its owner the face value of the promissory note.
We note that there is a dispute whether one who burns stolen chametz is liable for garmi. The position of the Ramban, which is ruled by CM, is that he is liable. However, the position of Tosafos, which is followed by several poskim (e.g., Yam Shel Shlomo BK 9, 19 whose position is discussed by Shach 386, 11) is that since this chametz only has value to the thief, one who damages it is not liable as garmi.
In your situation, since anyone can buy the honor, even Tosafos agrees that the one who set fire to the woodpile is liable as garmi.
Thus, we have derived the general principle that one who damages a dovor hagorem lemomon is liable because the act of damage is classified as garmi. If the object has value to the general public all agree that the one who damages is liable as garmi but if it only has value for one person it is a dispute. In your situation, since it has general value, all agree that the one who damaged is liable because his action is classified as garmi, a causative act of damage for which one is liable.
We note further that even if this had happened a few hours earlier, when no one would have bought the honor, the one who damaged the woodpile would have been liable for the full amount even though at that time it could not have been sold for this amount.
The source for this ruling is the discussion of the Gemara (BM 99B) and poskim concerning one who broke a barrel of wine which had a higher price on market days and a lower price on non-market days. Rashi explains that the Gemara rules that even if one damages the barrel on a non-market day, he must pay the price that the owner could sell it for on the market day. The Ketsos (304, 1) explains that Rashi’s rationale is that since the barrel could be sold for the higher price on the market day the one who damages must pay that price since the loss of potential income which he caused is considered garmi. Furthermore, the Ketsos brings other Rishonim who agree with Rashi and therefore rules that in practice the victim may take that amount from the one who damaged him.
The Nesivos (304, 2) disagrees with the Ketsos because the Gemara rules that one who steals an object or is liable because he was negligent in caring for an object that he was entrusted to watch must pay the price that the object was worth on the day the damage occurs. Therefore, the Nesivos says that one is not required to pay for an object’s value in the future, since we see in similar cases that the determinant is its current price.
However, the Nesivos agrees that for an object that is not sold for any other price besides its future price, the determinant is the future price because that is the only price that the object has.
We note that in your situation it is only because the one who damaged was negligent that he is liable. The reason is because we have determined that tossing a cigarette onto a woodpile is an act of garmi in terms of the loss of potential income and one is only liable (Shach 386, 6) for damages that are classified as garmi if he was negligent.
In conclusion: The one who threw the cigarette must pay a thousand dollars to your shteibel.
