Mekhilta of Rabbi Ishmael, Nezeqin 14: Restitution for Damage by Fire

Greco-Roman Period
As opposed to the Mishnah which only rarely quotes Scriptural proof texts, the halakhic Midrashim provide what is constructed as a sustained biblical commentary, showing how tannaitic law was derived from the Torah. In so doing, halakhic Midrashim, like the Mekhilta, emphasize the unity of the written and oral Torahs, which, to the Rabbis, were considered to be one whole.

“If fire breaks out,” etc. (Ex. 22-5). Why is this said? Even if it had not been said I
could have reasoned- Since he is liable for damage done by what is owned by him, shall
he not be liable for damage done by himself? If, then, I succeed in proving it by logical
reasoning, what need is there of saying- “If fire break out”? Simply this- Scripture comes
to declare that in all cases of liability for damage mentioned in the Torah, one acting
under duress is regarded as one acting of his own free will, one acting unintentionally is
regarded as one acting intentionally, and the woman is regarded like the man.

“And catches in thorns.” Behold, thorns are mentioned only with regard to fixing the
distance within which one is liable. If there are thorns around, there is a certain distance
within which one is liable. If there are no thorns around, there is no such distance. Hence
the sages said- If the fire gets across a river, or a road, or a stone fence higher than ten
handbreadths and causes damage, he is not liable. How do we determine the matter? We
regard him as standing in the center of a field, requiring a kor of seed, and lighting the
fire. These are the words of Rabbi Eleazar ben Azariah. Rabbi Eliezer says- The distance
within which he is liable is 16 cubits, the usual width of a public road. Rabbi Akiva says-
The distance is fifty cubits. Rabbi Simon says- “He that kindled the fire shall surely make
restitution-” it all depends on the size of the fire. It happened once that a fire spread
across the Jordan and did damage there, since it was a big fire. When does this obtain?
When the fire jumps. But if it keeps close to the ground and spreads that way, even
though it go a distance of a mile, he is liable.

“So that the stack… be consumed.” This means any kind of a pile. It also includes a row
of reeds or of beams, and likewise a heap or of stones of pebbles prepared to be used for
plastering.

“Or the standing corn (grain).” Trees are also included.

“Or the field.” That is, even if it just dried up the ground. May it not mean, even if
there were implements hidden in the stacks and they were burnt? It says- “Or the standing
corn or the field.” Just as the field is open, so also what stands in it must be open.
“The one that kindled the fire shall surely make restitution.” Why is this said? Because
it says- “A man” (v. 4), from which I know only about a man. But how about a woman, a
tumtum 123 or a hermaphrodite? It says- “The one that kindled the fire shall surely make
restitution”—whoever it may be.

I thus far know only about damage caused by grazing or by burning. How about all
other kinds of damage mentioned in the Torah? Behold, you reason and establish a
general rule on the basis of what is common to these two- The peculiar aspect of damage
by grazing is not like the peculiar aspect of damage by burning, nor is the peculiar aspect
of damage by burning like the peculiar aspect of damage by grazing. What is common to
both of them is- that it is their characteristic to do damage, they are your property, and it
is incumbent upon you to guard them. And when damage is done, the one causing the
damage is liable to pay for the damage from the best of his land. 124

122. Trans. J. Z. Lauterbach, Mekilta de-Rabbi Ishmael (JPS Library of Jewish Classics; Philadelphia-
Jewish Publication Society, 1976), vol. 3, pp.110-12.

123. One whose sexual characteristics cannot be determined.

124. Therefore, anyone who causes damage in any way at all is liable to pay for the dam.