Babylonian Talmud: Tractate Baba Kamma

Folio 30a

in the name of R. Ishmael etc.¹  [which proves that abandoned nuisances do involve liability]? — This presents no difficulty. One view²  is his own whereas the other³  is that of his master.

MISHNAH. IF A MAN POURS OUT WATER INTO PUBLIC GROUND AND SOME OTHER PERSON IS INJURED BY IT, THERE IS LIABILITY FOR THE DAMAGE. IF HE HIDES THORNS AND BROKEN GLASS, OR MAKES A FENCE OF THORNS, OR, IF A FENCE FALLS INTO THE PUBLIC GROUND AND DAMAGE RESULTS THEREFROM TO SOME OTHER PERSONS, THERE IS [SIMILARLY] LIABILITY FOR THE DAMAGE.⁴

GEMARA. Rab said: This Mishnaic ruling⁵  refers only to a case where his garments⁶  were soiled in the water. For regarding injury to himself there should be exemption, since it was ownerless ground that hurt him.⁷  [But] R. Huna said to Rab: Why should not [the topmost layer of the ground mixed up with private water] be considered as private clay?⁸  — Do you suggest [the ruling to refer to] water that has not dried up? [No.] It deals with a case where the water has already dried up. But why [at all] two [texts⁹  for one and the same ruling]?¹⁰  — One [text] refers to the summer season whereas the other deals with winter, as indeed [explicitly] taught [elsewhere]: All those who open their gutters or sweep out the dust of their cellars [into public thoroughfares] are, in the summer period, acting unlawfully, but lawfully in winter; [in all cases] even though when acting lawfully, if special damage resulted, they are liable to compensate.¹¹

IF HE HIDES THORNS etc., R. Johanan said:⁴  This Mishnaic ruling refers only to a case where the thorns were projecting into the public ground. For if they were confined within private premises there would be no liability. On what account is there exemption [in the latter case]? — R. Aha the son of R. Ika [thereupon] answered:¹²  Because it is not the habit of men to rub themselves against walls.

Our Rabbis taught: If one hid thorns and broken glasses in a neighbour's wall and the owner of the wall came and pulled his wall down, so that they fell into the public ground and did damage, the one who hid them is liable. R. Johanan [thereupon] said: This ruling refers only to an impaired wall.¹³  For in the case of a strong wall the one who hid [the thorns] should be exempt while the owner of the wall would be liable.¹⁴  Rabina commented: This ruling¹⁵  proves that where a man covers his pit with a neighbour's lid and the owner of the lid comes and removes his lid, the owner of the pit would be liable [for any damage that may subsequently be caused by his pit]. Is not this inference quite obvious?¹⁶  — You might perhaps have suggested this ruling¹⁵  [to be confined to the case] there, where the owner of the wall had no knowledge of the identity of the person who hid the thorns in the wall, and was accordingly unable to inform him of the intended pulling down of the wall, whereas in the case of the pit, where the owner of the lid very well knew the identity of the owner of the pit, [you might have argued] that it was his duty to inform him [of the intended removal of the lid].¹⁷  It is therefore made known to us [that this is not the case].¹⁸

Our Rabbis taught: The pious men of former generations used to hide their thorns and broken glasses in the midst of their fields at a depth of three handbreadths below the surface so that [even] the plough might not be hindered by them. R Shesheth¹⁹  used to throw them into the fire.²⁰  Raba threw them into the Tigris. Rab Judah said: He who wishes to be pious must [in the first instance particularly] fulfil the laws of [Seder] Nezikin.²¹  But Raba said: The matters [dealt with in the Tractate] Aboth;²²  still others said: Matters [dealt with in] Berakoth.²³

MISHNAH. IF A MAN REMOVES HIS STRAW AND STUBBLE INTO THE PUBLIC GROUND TO BE FORMED INTO MANURE, AND DAMAGE RESULTS TO SOME OTHER PERSON, THERE IS LIABILITY FOR THE DAMAGE, AND WHOEVER SEIZES THEM FIRST ACQUIRES TITLE TO THEM. R. SIMEON B. GAMALIEL SAYS: WHOEVER CREATES ANY NUISANCES ON PUBLIC GROUND CAUSING [SPECIAL] DAMAGE IS LIABLE TO COMPENSATE, THOUGH WHOEVER SEIZES OF THEM FIRST ACQUIRES TITLE TO THEM. IF HE TURNS UP DUNG THAT HAD BEEN LYING ON PUBLIC GROUND, AND DAMAGE [SUBSEQUENTLY] RESULTS TO ANOTHER PERSON, HE IS LIABLE FOR THE DAMAGE.

GEMARA. May we say that the Mishnaic ruling²⁴  is not in accordance with R. Judah? For it was taught: R. Judah says: When it is the season of taking out foliage everybody is entitled to take out his foliage into the public ground and heap it up there for the whole period of thirty days so that it may be trodden upon by the feet of men and by the feet of animals; for upon this understanding did Joshua make [Israel]²⁵  inherit the Land. — You may suggest it to be even in accordance with R. Judah, for R. Judah [nevertheless] agrees that where [special] damage resulted, compensation should be made for the damage done. But did we not learn that R. Judah maintains that in the case of a Chanukah candle²⁶  there is exemption on account of it having been placed there with authorization?²⁷  Now, does not this authorization mean the permission of the Beth din?²⁸  — No, it means the sanction of [the performance of] a religious duty²⁹  as [indeed explicitly] taught: R. Judah says: In the case of a Chanukah candle there is exemption on account of the sanction of [the performance of] a religious duty.

Come and hear: In all those cases where the authorities permitted nuisances to be created on public ground, if [special] damage results there will be liability to compensate. But R. Judah maintains exemption!³⁰  — R. Nahman said: The Mishnah³¹  refers to the time when it is not the season to take out foliage and thus it may be in accordance with R. Judah. — R. Ashi further [said]:

1. That there is liability for a pit dug in public ground, though it is ownerless.
2. That abandoning nuisances releases from responsibility.
3. That abandoning nuisances does not release from responsibility.
4. Supra p. 158.
5. Which, according to Rab, deals with a case where the water has not been abandoned, but remained still the chattel of the original owner.
6. Those of the person who was injured.
7. Whereas the water was but the remote cause of it.
8. Lit., 'his clay'. i.e., of the owner of the water.
9. The one here and the other supra p. 149.
10. Expounded by Rab here as well as supra pp. 149-150.
11. Supra pp. 19-20.
12. V. p. 159, n. 3.
13. Which was likely to be pulled down.
14. For not having taken proper care to safeguard the public.
15. As stated in the Baraitha quoted.
16. Why then had Rabina to make it explicit?
17. Failing that, the sole responsibility should then fall upon him.
18. But that the responsibility lies upon the owner of the pit.
19. Who was stricken with blindness; cf. Ber. 58a.
20. V. Nid. 17a.
21. [By being careful in matters that may cause damage.]
22. [Matters affecting ethics and right conduct. Var. lec., 'Rabina'.]
23. [The Tractate wherein the benedictions are set forth and discussed.]
24. Imposing liability in the commencing clause.
25. B.M. 118b. Why then liability for the damage caused thereby during the specified period permitted by law?
26. Placed outside a shop and setting aflame flax that has been passing along the public road.
27. Infra p. 361.
28. A permission which has similarly been extended in the case of the dung during the specified period and should accordingly effect exemption.
29. Which is of course absent in the case of removing dung to the public ground, where liability must accordingly be imposed for special damage.
30. Does not this prove that mere authorization suffices to confer exemption? Cf. n. 2.
31. V. p. 161, n. 5.

The Mishnah states, HIS STRAW AND STUBBLE which are slippery [and may never be removed into public ground even according to R. Judah].

WHOEVER SEIZES THEM FIRST ACQUIRES TITLE TO THEM. Rab said: Both to their corpus and to their increase [in value],¹  whereas Ze'ire said: Only to their increase but not to their corpus.²  Wherein is the point at issue?³  — Rab maintains that they [the Rabbis] extended the penalty to the corpus on account of the increase thereof, but Ze'ire is of the opinion that they did not extend the penalty to the corpus on account of the increase thereof.

We have learnt: IF HE TURNS UP DUNG THAT HAD BEEN LYING ON PUBLIC GROUND AND DAMAGE [SUBSEQUENTLY] RESULTS TO ANOTHER PERSON, HE IS LIABLE FOR THE DAMAGE. Now, [in this case] it is not stated that 'Whoever seizes it first acquires title to it.'⁴  — [This ruling has been] inserted in the commencing clause, and applies as well to the concluding clause. But has it not in this connection⁵  been taught [in a Baraitha]: They are prohibited [to be taken possession of] on account of [the law of] robbery?⁶  — When [the Baraitha] states 'They are prohibited on account of robbery' the reference is to all the cases [presented] in the Mishnaic text⁷  and [is intended] to [protect] the one who had seized [of them] first, having thereby acquired title [to them]. But surely it was not meant thus, seeing that it was taught:⁸  'If a man removes straw and stubble into the public ground to be formed into manure and damage results to another person, he is liable for the damage, and whoever seizes them first acquires title to them, as this may be done irrespective of [the law of] robbery. [However] where he turns up dung on public ground and damage [subsequently] results to another person, he is liable [to compensate] but no possession may be taken of the dung on account of [the law of] robbery'?⁶  — R. Nahman b. Isaac [thereupon] exclaimed: What an objection to adduce from the case of dung! [It is only in the case of] an object that is susceptible to increase [in value] that the penalty is extended to the corpus⁹  for the purpose of [discouraging any idea of] gain, whereas with regard to an object that yields no increase there is no penalty [at all].¹⁰

The question was asked: According to the view that the penalty extends also to the corpus for the purpose of [discouraging the idea of] gain,⁹  is this penalty imposed at once¹¹  or is it only after some gain has been produced that the penalty will be imposed? — Come and hear: An objection was raised [against Rab] from the case of dung!¹²  But do you really think this [solves the problem]? The objection from the case of dung was raised only before R. Nahman expounded the underlying principle;¹³  for after the explanation given by R. Nahman what objection indeed could there be raised from the case of dung?¹⁴

Might not one suggest [the argument between Rab and Ze'ire to have been] the point at issue between [the following] Tannaim? For it was taught: If a bill contains a stipulation of interest,¹⁵  a penalty is imposed so that neither the principal nor the interest is enforced; these are the words of R. Meir, whereas the Sages maintain that the principal is enforced though not the interest.¹⁶  Now, can we not say that Rab adopts the view of R. Meir¹⁷  whereas Ze'ire follows that of the Rabbis?¹⁸  — Rab may explain [himself] to you [as follows]: 'I made my statement even according to the Rabbis: for the Rabbis maintain their view only there, where the principal as such is quite lawful, whereas here in the case of nuisances the corpus itself is liable to do damage.' Ze'ire [on the other hand] may explain [himself] to you [thus]: 'I made my statement even in accordance with R. Meir; for R. Meir expressed his view only there, where immediately, at the time of the bill having been drawn up, [the evil had been committed] by stipulating the usury, whereas here in the case of nuisances, who can assert that [special] damage will result?'

Might not one suggest [the argument between Rab and Ze'ire to have been] the point at issue between these Tannaim? For it was taught: If a man removes straw and stubble into the public ground to be formed into manure and damage results to another person, he is liable for the damage, and whoever seizes them first acquires title to them. They are prohibited [to be taken possession of] on account of [the law of] robbery. R. Simeon b. Gamaliel says: Whoever creates any nuisances on public ground and causes [special] damage is liable to compensate, though whoever takes possession of them first acquires title to them, and this may be done irrespective of [the law of] robbery. Now, is not the text a contradiction in itself? You read, 'Whoever seizes them first acquires title to them,' then you state [in the same breath], 'They are prohibited [to be taken possession of] on account of [the law of] robbery'! It must therefore mean thus: 'Whoever seizes them first acquires title to them,' viz., to their increase, whereas, 'they are prohibited to be taken possession of on account of [the law of] robbery,' refers to their corpus. R. Simeon b. Gamaliel thereupon proceeded to state that even concerning their corpus, 'whoever seizes them first, acquires title to them.' Now, according to Ze'ire, his view must unquestionably have been the point at issue between these Tannaim,¹⁹  but according to Rab, are we similarly to say that [his view] was the point at issue between these Tannaim? — Rab may say to you: 'It is [indeed] unanimously held that the penalty must extend to the corpus for the purpose [of discouraging the idea] of gain; the point at issue [between the Tannaim] here is whether this halachah²⁰  should be made the practical rule of the law'.²¹  For it was stated: R. Huna on behalf of Rab said: This halachah²⁰  should not be made the practical rule of the law,²²  whereas R. Adda b. Ahabah said: This halachah²⁰  should be made the practical rule of the law. But is this really so? Did not R. Huna declare barley [that had been spread out on public ground] ownerless, [just as] R. Adda b. Ahabah declared

1. While on public ground.
2. Which thus still remains the property of the original owner.
3. I.e., what is the principle underlying it?
4. This clause, if omitted purposely, would thus tend to prove that the penalty attaches only to straw and stubble and their like, which improve while lying on public ground, but not to dung placed on public ground, apparently on account of the fact that in this case there is neither increase in quantity nor improvement in quality while lying on public ground. This distinction appears therefore to be not in accordance with the view of Rab, maintaining that the penalty extend not only to the increase but also to the corpus of the object of the nuisance.
5. I.e. in connection with the latter clause.
6. Which shows that the penalty does not extend to the corpus.
7. Even to straw and stubble.
8. [V. D.S. a.l.]
9. According to the view of Rab.
10. For, since there is no gain, nobody is likely to be tempted to place dung on public ground.
11. Even before any gain accrued.
12. Although no increase will ever accrue there, thus proving that according to Rab the penalty is imposed on the corpus even before it had yielded any gain.
13. That there is no penalty at all with regard to an object that yields no increase; whereas the query is based on the principle laid down by R. Nahman.
14. Where no increase will ever accrue.
15. Which is against the biblical prohibition of Ex. XXII, 24.
16. Cf. B.M. 72a.
17. Extending the penalty also to the corpus.
18. I.e., the Sages who maintain that the penalty attaches only to the increase.
19. For R. Simeon b. Gamaliel is certainly against his view.
20. To extend the penalty to the corpus.
21. As to whether people should be encouraged to avail themselves of it, or not.
22. For the sake of not disturbing public peace.