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Week 92 - Friday - 31 August 2001

BAVA KAMMA: CHAPTER 3: MISHNAH 3

One who brings forth his straw or stubble into the public domain for manure and another was injured by them, is liable for his injury; and whoever is first attains them. Rabban Shimon ben Gamliel says, Whoever spoils the public domain, and they caused damage, is obligated to pay; and whoever is first attains them. One who turns over the dung in the public domain, and another was injured by it, is liable for his injury.

Kehati

One who brings forth his straw or stubble into the public domain for manure - so that they rot and become manure for fertilizing his fields, and another was injured by them - e.g., he slipped in it, is liable for his injury - by reason of the law of the pit which caused damage; and whoever is first - to take them - attains them - since the Sages fined him, and rendered his straw and stubble ownerless, so that he would not leave them in the public domain. Even though they are ownerless (hefker), if damage was caused by them to a man or an animal, the person who put them out is nevertheless obligated to pay, since one who renounces ownership of property which causes damage, not under circumstances beyond his control, is liable (Tosefot Yom Tov).

Rabban Shimon ben Gamliel says, Whoever spoils the public domain - even with permission, e.g., during the season when dung may be taken out into the public domain (Rashi, Bartenura), as was taught in a baraita: "When it is the season to put out manure, a person may put his manure out in the public thoroughfare and leave it heaped up for thirty days, so that it should be trodden down by the foot of man and beast, for Joshua allotted the Land of Israel on this condition"; nevertheless if they - caused damage, he is obligated to pay - for the damage they caused; and whoever is first attains them - Tosafot explains that this phrase does not refer back to what was explained above, "even with permission," for if they do this with permission, there is no reason to fine them. This is a separate law, which is to be interpreted as follows: "And whoever is first" to take them when they are standing in the public domain without permission, e.g., after thirty days, attains - them, is explained above, because the Rabbis fined him, so that they would not spoil the public domain.

One who turns over cattle dung - in the public domain - since it is ownerless, and he turns it over in order to attain it, and another was injured by it, is liable for his injury - since he intended to attain it, it is his, and he is responsible for damage caused by it.

BAVA KAMMA: CHAPTER 3: MISHNAH 4

If two potters were walking one behind the other, and the first one stumbled and fell, and the second one stumbled over the first, the first is liable for the injuries of the second.

Kehati

If two potters - were walking one behind the other - on the road, and the first one stumbled and fell, and the second one stumbled over the first - and was injured, the first is liable for the injuries of the second - the Gemara explains that this refers to a case in which the first one was able to rise before the second one stumbled over him; since he did not rise, his fellow stumbled against him because of his negligence, and he therefore is liable for the damage he caused. If, however, he had not been able to rise, he is exempt, since he had stumbled, and the law is that one who stumbles is not regarded as being negligent, but rather as one caught in a circumstance beyond his control; and even though he could have warned the second one, he nevertheless is exempt, since he was preoccupied with his own safety (this is Rabbi Yohanan's opinion in the Gemara, and Alfasi and Rambam decide in accord with it).

According to the opinion of Rabbi Nahman bar Yitzhak in the Gemara, if he could have warned, even though he could not rise, he is liable (see Rabbeinu Asher and Tosefot Rabbi Akiva Eiger). In any case, he is liable only if the body of the second one was injured, but he is exempt if his fellow's utensils were damaged, since the obligation here is based on damages caused by the pit, for every obstacle is a derivative of the principal type "pit", and a person is not liable for vessels damaged in the pit (Rambam, Hil. Nizekei Mamon 13:9).

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