Torah Community Connections

Week 104 - Thursday - 22 November 2001

BAVA METZIA: CHAPTER 10: MISHNAH 5

One whose wall was close to his fellow's garden, and it collapsed, and he said to him, "Clear away your stones," and he said to him, "They are yours," we do not heed him. When he accepted, he said to him, "Here are your expenses, and I will take mine," we do not heed him. If one hired a worker to work with him in straw or stubble, and he said to him, "Give me my wages," and he said to him, "Take what you did for your wages," we do not heed him. When he accepted, and he said to him, "Here are your wages, and I will take mine," we do not heed him. If one puts out his manure in the public thoroughfare, the one who puts it out puts it out, and the one who fertilizes fertilizes. One may not soak clay in the public thoroughfare, nor make bricks, but one may knead clay in the public thoroughfare, but not bricks. If one builds in the public thoroughfare: the one who brings stones brings, and the builder builds; and if he caused damage, he pays for the damages he caused. Rabban Shimon ben Gamliel says, He may even prepare his work thirty days before.

Kehati

One whose wall was close to his fellow's garden, and it - the wall - collapsed - into his fellow's garden - and he - the owner of the garden - said to him - the owner of the wall - "Clear away your stones" - from my garden - and he - the owner of the wall - said to him - the owner of the garden - "They - the stones - are yours" - and you clear them away yourself - we do not heed him - to exempt himself from clearing away the stones, if the owner of the garden does not want them; the owner of the wall is forced to clear away his stones.

When he accepted - if the owner of the garden agreed to this offer, and went and cleared away the stones, and - he - the owner of the wall then - said to him, "Here are your expenses - Take from me what you spent on the removal of the stones - and I will take mine" - give me my stones - we do not heed him - since he had already cleared them away, he already acquired them. As long as he has not removed them, however, even though he agreed to remove them, if the owner of the wall changed his mind and said to him, "Do not remove them, instead, I myself will remove them and take them for myself," the owner of the wall is certainly heeded. In such a case, we do not rule that the courtyard of the garden's owner acquired them for him from the time that he agreed to remove them, since the owner of the wall did not intend to give him possession of them, but rather intended only to put him off (Gemara).

If one hired a worker to work with him in straw or stubble - i.e., to collect these for him from his field or from ownerless property - and he - the worker - said to him - the employer - "Give me my wages" - for my work - and he - the employer - said to him, "Take what you did - the straw and stubble - as wages" - for your work - we do not heed him - Even though the Sages ruled in every case that the value of money is considered as if it were money itself, this is not the case concerning a hired worker. It was learned from the passage in the Torah, "the wages of a hired worker shall not abide with you all night" (Lev. 19:13) that the employer is obligated to pay him in accordance with their original agreement.

When he accepted - If the worker agreed to this offer, and took the straw and stubble as the wages for his work - and then he - the employer - said to him, "Here are your wages - Take the wages for your work from me - and I will take mine" - and give me my straw and stubble - we do not heed him - since the worker has already acquired them, and the employer cannot retract.

If one puts out his manure in the public thoroughfare, the one who puts it out puts it out, and the one who fertilizes fertilizes - When someone puts out manure in the public thoroughfare, someone else must take it immediately to his field and use it as fertilizer, since he is forbidden to leave it there. The Gemara in Bava Kamma, however, cites the following baraita: "When it is time 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." In any case, if it caused damage, he pays for the damage which it caused, as we have learned: "Whoever causes despoliation in the public domain" - even though his actions have been authorized by the court - "is obligated to pay" (B. K. 3:3; see commentary).

One may not soak clay in the public thoroughfare - since it is normally soaked for many days - nor make bricks - in the public thoroughfare, since they must be left for a long time until they dry - but one may knead clay in the public thoroughfare - in order to use it immediately in building - but - one may - not - knead clay for - bricks - in the public domain, even if he fires them in the private domain (Tiferet Yisrael).

If one builds in the public thoroughfare - i.e., if one builds a house and has to use the public domain for his lumber and stones: the one who brings stones brings, and the builder builds - immediately, since it is forbidden to leave the stones in the public thoroughfare; and if he caused damage, he pays for the damage he caused - as has been explained above: whoever was permitted by the Sages to cause despoliation in the public domain nevertheless is obligated to pay if he caused damage.

Rabban Shimon ben Gamliel says, He - the builder - may even prepare - what is necessary for - his work - in the public domain - thirty days before - the construction work itself, and he is not liable for damages (Gemara). The law is not in accordance with the opinion of Rabban Shimon ben Gamliel.

BAVA METZIA: CHAPTER 10: MISHNAH 6

If there are two gardens, one above the other, and the vegetables between them: Rabbi Meir says, They belong to the upper; Rabbi Yehudah says, They belong to the lower. Rabbi Meir said, If the upper would want to remove his soil, there would be no vegetables here; Rabbi Yehudah said, If the lower would want to fill up his garden, there would be no vegetables here. Rabbi Meir said, Since either of them can prevent the other, we see from where these vegetables live. Rabbi Shimon said, Whatever the upper one can take, as far as he can extend his hand, is his, and the rest belongs to the lower.

Kehati

If there are two gardens - belonging to two people - one above the other - e.g., one is on a hill, and the other one is in a valley, with a steep slope between them, as in the drawing:

and vegetables - grow on this slope - between them - the gardens:

Rabbi Meir says, They - the vegetables - belong to - the owner of - the upper - garden, since they grow from his soil;

Rabbi Yehudah says, They belong to - the owner of - the lower - garden, since they grow in his air.

Rabbi Meir said, If the upper would want to remove his soil - the soil of his garden and make it level with the lower garden - there would be no vegetables here - hence the vegetables are nourished from his soil, and are his;

Rabbi Yehudah said, If the lower would want to fill up his garden - with soil, to the level of the upper garden - there would be no vegetables here - hence the vegetables grow in his air, and are his.

Rabbi Meir said, Since either of them can prevent the other - from growing the vegetables, the owner of the upper garden by removing his soil, and the owner of the lower one by filling his garden with soil - we see from where these vegetables live - from whose soil the vegetables are nourished and grow, and give them to him.

Rabbi Shimon said, Whatever the upper one can take - from the vegetables - as far as he can extend his hand - without endangering himself - is his - since it grows from his soil, as in the opinion of Rabbi Meir - and the rest belongs to the lower - since the owner of the upper garden himself renounces ownership over the vegetables in the lower part, for he is embarrassed to ask the owner of the lower garden for permission to enter his garden in order to pick them there. The law is in accordance with Rabbi Shimon.

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