by Chaim Weber

The holiday of Chanukah is rarely mentioned in the mishnayos.

 One of the rare references is the opinion of R’ Yehuda.

The Mishnah (Bava Kamma 62b) discusses a case where one lights neiros Chanukah in a public domain and causes a passing animal’s load to catch fire. R’ Yehuda holds that the owner of the neiros is exempt from paying for the damage, as the owner put his neiros there under the permission of a mitzvah.

The Rabanan disagree. They hold that the owner will still be liable for the damage – the fact that they resulted from mitzvah performance would not be an exemption.

 Why?

The Rambam, Tur and Shulchan Aruch all explain that the owner should have stayed and watched to make sure the neiros don’t cause damage.

As a matter of halacha, we rule like the Rabanan that the owner is liable.

This raises an interesting question from a well-known Rema.

The Rema (Orach Chaim 695) rules that if one damages on Purim amidst the Purim celebrations, one is not liable. We see that there is an exemption from damages for actions caused while performing a mitzvah. Why is this different from the case of the neiros causing damage?

1 – The Simplest Answer: The Rema Himself

When discussing the halacha of Purim, the Rema says to reference what he wrote in Choshen Mishpat on the laws of damages. There, the Rema writes the following:

“Young men who ride (on horses) to greet a chosson and kallah and damage each other through manners of simcha and laughter, and also by other areas of simcha, since that is the minhag, the damager is therefore exempt.”

The exemption of the Rema is not a general exemption from damages when performing mitzvos. In fact, the damager should really be liable. However, since the minhag developed to celebrate in such a way, both on Purim and in greeting a chosson and kallah, one would be exempt from damages due to the minhag.

The Pri Megadim, when explaining the Rema’s exemption by Purim, indicates it’s because people are mochel. When choosing to participate in such celebratory gatherings, one is presumably mochel on any damages incurred.

This clearly would not apply to ner Chanukah.

2 – The Pri Megadim – The Oneis Exemption

The Pri Megadim seems to offer an additional reason behind the exemption of the Rema.

He adds that when celebrating, any damage that comes from the celebration is a “slight oneis.” Therefore, one is exempt.

This clearly would not apply to Chanukah, as the poskim say the owner should have stayed to watch over his neiros and is therefore liable.

(One question on this Pri Megadim: As mentioned in last week’s article, there is a debate between Tosfos and the Ramban whether oneis is an exemption by damages: The Ramban holds that it’s not, while Tosfos holds that it is. However, even according to Tosfos, the exemption of oneis only applies by an oneis gamur, a complete and unavoidable accident. Not by a “slight oneis.”

Both the Ramban and Tosfos agree that a “slight oneis” is not a grounds for exemption!

Perhaps the Pri Megadim is not using this as an additional reason but rather as a qualifier. Even by Purim where people are mochel, they’re only mochel because damages caused during celebrations are generally cases of “slight oneis”. However, if there was no oneis at all, one would not be exempt. The Pri Megadim’s words are cryptic but a precise reading may support this interpretation.)

3 – The Bach: Difference Between Different Levels of Damage

The Bach differentiates between major damages and minor damages.

We would only exempt minor damages. For major damages, there would no exemption from damages caused on Purim.

The case by Chanukah is speaking about major damages.

The Case of Issi Ben Yehuda and Kiddush Levana

Another potential exemption for a person doing a mitzvah stems from another Gemara in Bava Kamma.

The Gemara in Bava Kamma (32a) relates that if Reuven is running in a public domain and Shimon is walking and they crash into each other, Reuven is liable for any damage, as he was acting out of the ordinary.

However, if it was on erev shabbos, Issi Ben Yehuda rules that Reuven is exempt.

We rule in accordance with the opinion of Issi ben Yehuda. Would this be another source for an exemption for damages resulting from mitzvah performance?

The Chavos Yair (207) says no for two reasons.

Firstly, the Beis Yosef quotes the Mordechai that this exemption is only for someone running for the sake of shabbos where there is an unusually intense time pressure. The exemption would not apply for running to do other mitzvos. For example, if someone was running to the beis medrash and caused damage, he would not be exempt.

Secondly, the Chavos Yair adds that even by erev shabbos, the exemption only applies when Reuven is running and Shimon is walking. If Shimon was standing still and Reuven crashed into him, Reuven would not be exempt. Clearly, the fact that he was running to do a mitzvah is not a blanket exemption as if it was, it would be an exemption across the board.

The Chavos Yair applies this conclusion to the following question that he was asked: If someone causes damage while running to do kiddush levana, would there be an exemption due to him running to perform a mitzvah?

He concludes that there is not.

Of course, rabbanim and poskim should be consulted on a practical level for any monetary claims.

In conclusion, it’s good to note that this entire discussion relates to whether beis din will obligate a damager to pay. Ideally, mindfulness towards another’s property is always the absolute recommendation.

As Chazal say in Pirkei Avos (2:12): “Y’hi mammon chaveircha chaviv alecha k’shelach – let the money of your friends be as dear to you as your own.”