Bava Metzia 118
הִגִּיעוּךָ – אֵין שׁוֹמְעִין לוֹ. מִשֶּׁקִּבֵּל עָלָיו אָמַר לוֹ: הֵילָךְ אֶת יְצִיאוֹתֶיךָ, וַאֲנִי אֶטּוֹל אֶת שֶׁלִּי – אֵין שׁוֹמְעִין לוֹ.
They are yours, as I hereby declare them ownerless, and you can take them for yourself; the court does not listen to him, since he cannot force the other to acquire the stones. If after the owner of the garden voluntarily accepted ownership of the stones upon himself, the owner of the wall said to him: Here you are, take your expenditures for the removal of the stones, and I will take the stones that are mine; the court does not listen to him, as they had already been acquired by the owner of the garden.
הַשּׂוֹכֵר אֶת הַפּוֹעֵל לַעֲשׂוֹת עִמּוֹ בַּתֶּבֶן וּבַקַּשׁ, וְאָמַר לוֹ: תֵּן לִי שְׂכָרִי. וְאָמַר לוֹ: טוֹל מַה שֶּׁעָשִׂית בִּשְׂכָרְךָ – אֵין שׁוֹמְעִין לוֹ. מִשֶּׁקִּבֵּל עָלָיו וְאָמַר לוֹ: הֵילָךְ שְׂכָרְךָ וַאֲנִי אֶטּוֹל אֶת שֶׁלִּי – אֵין שׁוֹמְעִין לוֹ.
The mishna continues: In the case of one who hires a laborer to do work with him with hay or with straw, and after he finished the task, the laborer said to the employer: Give me my wages, and the employer said to him: Take what you have worked with as your wages, i.e., take some of the hay or straw as payment, the court does not listen to him. Although debts can be paid with any item of value, even hay or straw, the wages of a laborer must be paid in accordance with the initial agreement between the laborer and the employer. But if after the laborer accepted upon himself to keep the hay or straw as payment, the employer changed his mind and said to him: Here you are, take your wages and I will take what is mine; the court does not listen to him, since the laborer had already acquired the hay.
גְּמָ׳ נִפְחֲתָה, רַב אָמַר בְּרוּבָּהּ, וּשְׁמוּאֵל אָמַר בְּאַרְבַּע. רַב אָמַר: בְּרוּבָּהּ, אֲבָל בְּאַרְבַּע – אָדָם זוֹרֵעַ חֶצְיוֹ לְמַטָּה וְחֶצְיוֹ לְמַעְלָה. וּשְׁמוּאֵל אָמַר: בְּאַרְבַּע – אֵין אָדָם זוֹרֵעַ חֶצְיוֹ לְמַטָּה וְחֶצְיוֹ לְמַעְלָה.
GEMARA: With regard to the case of the roof of the olive press that was broken, the Gemara cites a dispute with regard to the amount that collapsed: Rav says: Most of it must have collapsed, and Shmuel says: Even a hole of four handbreadths is sufficient for the ruling of the mishna to apply. Rav says: Most of it must have collapsed, but if it is only a hole of four handbreadths, there is no basis for a claim, since a person can sow partially on a level below, and partially on a level above. And Shmuel says: It is enough if it is a hole of four handbreadths, as a person cannot sow partially on a level below, and partially on a level above.
וּצְרִיכָא: דְּאִי אַשְׁמוֹעִינַן דִּירָה, בְּהָא קָאָמַר שְׁמוּאֵל מִשּׁוּם דְּלָא עֲבִידִי אִינָשֵׁי דְּדָיְירִי פּוּרְתָּא הָכָא וּפוּרְתָּא הָכָא, אֲבָל לְעִנְיַן זְרִיעָה – עֲבִידִי אִינָשֵׁי דְּזָרְעִי הָכָא פּוּרְתָּא וְהָכָא פּוּרְתָּא, אֵימָא מוֹדֶה לֵיהּ לְרַב. וְאִי אִיתְּמַר בְּהָךְ, בְּהָךְ קָאָמַר רַב, אֲבָל בְּהָא – אֵימָא מוֹדֶה לֵיהּ לִשְׁמוּאֵל, צְרִיכָא.
The Gemara comments: And it is necessary for the dispute between Rav and Shmuel to be stated both here and with regard to the case of an upper story of a house that collapsed (116b). As had the Gemara taught us only that they disagree with regard to a residence, one would have said: It is only in this case that Shmuel is saying his ruling, because people do not tend to live a little here and a little there, but with regard to sowing, people do tend to sow a little here and a little there. Therefore, one might say that he concedes to Rav in the case of the olive press. And if this dispute was stated only with regard to this case of the olive press, one would have said that it is only with regard to this case that Rav is saying his opinion, but with regard to that case involving the house, one might say that he concedes to Shmuel. Therefore, it is necessary to state that their dispute applies to both cases.
נָתְנוּ לוֹ זְמַן. וְכַמָּה זְמַן בֵּית דִּין? אָמַר רַבִּי יוֹחָנָן: שְׁלֹשִׁים יוֹם.
§ The mishna teaches: If the court saw that the wall was shaky, or that the tree was tilting, and they gave him time to cut down the tree or to dismantle the wall, and then they fell down, if this occurred during the allotted time, he is exempt, but if they collapsed after the time given to him had elapsed, he is liable to pay. The Gemara asks: And how much time will a court usually allot for this purpose? Rabbi Yoḥanan says: The standard period is thirty days.
מִי שֶׁהָיָה כּוֹתְלוֹ כּוּ׳. הָא מִדְּקָתָנֵי סֵיפָא: ״הֵילָךְ יְצִיאוֹתֶיךָ״, מִכְּלָל דְּפַנִּינְהוּ עָסְקִינַן. טַעְמָא דְּפַנִּינְהוּ, הָא לָא פַּנִּינְהוּ – לָא.
§ The mishna teaches: In the case of one whose wall was located next to his friend’s garden and it fell, if the owner of the wall told the owner of the garden to keep the stones, he cannot retract. The Gemara comments: But from the fact that the last clause of the mishna teaches that if the owner of the fallen wall says: Here you are, take your expenditures, the court does not listen to him, it can be understood by inference that we are dealing with a case where the owner of the garden cleared away the stones. It can therefore be deduced that the reason the owner of the fallen wall cannot retract his offer is that the owner of the garden cleared them away, but if he did not clear them away, the stones are not considered his, and they remain in the possession of the owner of the wall.
אַמַּאי: וְתִקְנֶה לֵיהּ שָׂדֵהוּ, דְּאָמַר רַבִּי יוֹסֵי בְּרַבִּי חֲנִינָא: חֲצֵירוֹ שֶׁל אָדָם קוֹנָה לוֹ שֶׁלֹּא מִדַּעְתּוֹ!
The Gemara asks: Why do they remain in the possession of the owner of the wall? But shouldn’t the owner of the garden’s field effect acquisition of the stones on his behalf? As Rabbi Yosei, son of Rabbi Ḥanina, says: The courtyard of a person effects acquisition for him of those items that enter it, even without his knowledge.
הָנֵי מִילֵּי הֵיכָא דְּקָא מִיכַּוֵּין לְאַקְנוֹיֵי לֵיהּ. אֲבָל הָכָא – אִישְׁתְּמוֹטֵי הוּא דְּקָא מִישְׁתְּמִיט לֵיהּ.
The Gemara answers: This statement applies only in a case where the giver intends to transfer them to him, in which case the field can effect acquisition of the stones for the receiver without an additional act of acquisition, but here, the owner of the fallen wall is seeking only to evade the owner of the garden. He wants the owner of the garden to take care of the stones, at which point he can collect them from him without much effort on his part, and he does not intend to give the stones to him.
הַשּׂוֹכֵר לַעֲשׂוֹת עִמּוֹ בְּתֶבֶן כּוּ׳. וּצְרִיכָא,
§ The mishna teaches: In the case of one who hires a laborer to do work with him with hay, the employer cannot force him to accept his wages in the form of some of the hay. The Gemara comments: And it is necessary to mention this halakha with regard to both cases.
דְּאִי אַשְׁמוֹעִינַן לְהָךְ קַמַּיְיתָא, דְּכִי קָאָמַר לֵיהּ ״הִגִּיעוּךְ״ – אֵין שׁוֹמְעִין לוֹ, מִשּׁוּם דְּלֵית לֵיהּ אַגְרָא גַּבֵּיהּ. אֲבָל הָכָא, דְּאִית לֵיהּ אַגְרָא גַּבֵּיהּ – אֵימָא שׁוֹמְעִין לוֹ, דְּאָמְרִי אִינָשֵׁי: ״מִמָּרֵי רַשְׁוָתָיךְ פָּארֵי אִפְּרַע״.
As had it taught us only with regard to this first case of the stones that fell that when the owner of the fallen wall says to the owner of the garden: They are yours, the court does not listen to him, one would have said that this is the halakha because he does not have a wage owed by him, as they had no prior business dealings together, and the owner of the stones does not owe the owner of the garden anything. But here, in the case of a laborer working with hay, in which the laborer does have a wage owed by the employer, one might say that the court listens to him, as people say the following proverb: When collecting a debt from your debtor, allow yourself to be repaid even in bran [parei], i.e., take whatever you can as payment of a loan.
וְאִי אַשְׁמוֹעִינַן הָכָא – הָכָא שֶׁמִּשֶּׁקִּבֵּל עָלָיו אֵין שׁוֹמְעִין לוֹ, מִשּׁוּם דְּאִית לֵיהּ אַגְרָא גַּבֵּיהּ. אֲבָל הָכָא, דְּלֵית לֵיהּ אַגְרָא גַּבֵּיהּ – אֵימָא שׁוֹמְעִין לוֹ, צְרִיכָא.
And had it taught us only over here with regard to the hay, one would have said that it is only here that after the laborer has already accepted ownership upon himself, the court does not listen to the employer who desires to retract, because the laborer has a wage owed by him, and therefore there is reason to say that he receives the hay. But here, with regard to the stones, where the owner of the garden does not have a wage owed by the owner of the fallen wall, one might say that the court listens to him and he can retract. It is therefore necessary for the mishna to teach both cases.
אֵין שׁוֹמְעִין לוֹ. וְהָתַנְיָא: שׁוֹמְעִין לוֹ! אָמַר רַב נַחְמָן: לָא קַשְׁיָא. כָּאן בְּשֶׁלּוֹ, כָּאן בְּשֶׁל חֲבֵירוֹ.
§ The mishna teaches that if an employer seeks to pay his laborer with straw, the court does not listen to him. The Gemara asks: But isn’t it taught in a baraita that the court does listen to him? The Gemara answers: Rav Naḥman said: This is not difficult. The ruling of the mishna here, that the court does not listen to him, is stated with regard to a case of work done with the employer’s own property. And the ruling of the baraita there, that the court does listen to him, is stated with regard to work done with the property of another, and there the employer’s request is accepted.
אֲמַר לֵיהּ רָבָא לְרַב נַחְמָן: בְּשֶׁלּוֹ מַאי טַעְמָא – דַּאֲמַר לֵיהּ: אַגְרָא עֲלָךְ, בְּשֶׁל חֲבֵירוֹ נָמֵי שְׂכָרוֹ עָלָיו. דְּתַנְיָא: הַשּׂוֹכֵר אֶת הַפּוֹעֵל לַעֲשׂוֹת בְּשֶׁלּוֹ, וְהֶרְאָהוּ בְּשֶׁל חֲבֵירוֹ – נוֹתֵן לוֹ שְׂכָרוֹ מִשָּׁלֵם, וְחוֹזֵר וְנוֹטֵל מִבַּעַל הַבַּיִת מַה שֶּׁהֶהֱנָה אוֹתוֹ!
Rava said to Rav Naḥman: In a case where he is working with his own property, what is the reason that the court does not listen to him? As the laborer can say to the employer: The responsibility of paying my wage is on you. But if he was working with the property of his friend, the responsibility of paying his earnings is also on the employer, as it is taught in a baraita: With regard to one who hires a laborer to perform work in his own field, and the employer inadvertently showed the laborer the field belonging to another in which he should work, the employer must give the laborer his full wages, and in addition, the employer goes back and takes from the owner of the field in which he worked the value of the benefit that owner received from the laborer. The payment of the wages is incumbent upon the employer, not the owner of the field.
אֶלָּא אָמַר רַב נַחְמָן, לָא קַשְׁיָא: כָּאן בְּשֶׁלּוֹ, כָּאן בְּשֶׁל הֶפְקֵר.
Rather, Rav Naḥman said a different explanation: It is not difficult. The ruling of the mishna here, that the court does not listen to him, is stated with regard to work done with the employer’s own property. And the ruling of the baraita there, that the court does listen to him, is stated with regard to work done with ownerless property, e.g., the employer hired him to gather ownerless hay, and later told him to keep some of the hay as his wages. In that case, he can force the laborer to accept the hay as payment.
אֵיתִיבֵיהּ רָבָא לְרַב נַחְמָן: מְצִיאַת פּוֹעֵל לְעַצְמוֹ, אֵימָתַי? בִּזְמַן שֶׁאָמַר לוֹ בַּעַל הַבַּיִת נַכֵּשׁ עִמִּי הַיּוֹם, אוֹ עֲדוֹר עִמִּי הַיּוֹם. אֲבָל אִם אָמַר לוֹ: עֲשֵׂה עִמִּי מְלָאכָה הַיּוֹם – מְצִיאָתוֹ לְבַעַל הַבַּיִת!
Rava raised an objection to Rav Naḥman: It was taught in a baraita: The found item of a salaried laborer belongs to himself. When is this so? When the employer told him to perform a specific task, for example if he said: Weed with me today, or if he said: Hoe with me today. If the laborer finds lost property while performing that task, then the item belongs to him. But if the employer says to the laborer: Work with me today, without specifying what labor he wants him to perform, his found item belongs to the employer, as acquiring found items can be considered part of his terms of employment. In the case of Rav Naḥman, since the employer instructed the laborer to gather ownerless hay, the acquisition of the hay is certainly part of the terms of his employment, and belongs to the employer. Since it is the employer’s property, he is not able to force the laborer to accept the hay as payment.
אֶלָּא אָמַר רַב נַחְמָן, לָא קַשְׁיָא: כָּאן – בְּהַגְבָּהָה, כָּאן – בְּהַבָּטָה.
Rather, Rav Naḥman said: Both the ruling of the mishna and the ruling of the baraita are stated with regard to a laborer hired to work with ownerless property, but it is not difficult. The ruling of the mishna here, that the court does not listen to him, is stated with regard to a case where the laborer’s task was to lift up the hay and gather it, and he is therefore considered the employer’s agent and acquires the hay for him. Since the hay then belongs to the employer, he cannot force the laborer to accept it as payment. And the ruling of the baraita there, that the court does listen to him, is stated with regard to a case where his work merely consisted of viewing, e.g., he hired him to make sure that no one takes the ownerless hay. In that case, even the employer does not acquire the straw, and it remains ownerless. Consequently, the employer can tell the laborer to take some hay as payment.
אָמַר רַבָּה: הַבָּטָה בְּהֶפְקֵר – תַּנָּאֵי הִיא. דִּתְנַן: שׁוֹמְרֵי סְפִיחֵי שְׁבִיעִית נוֹטְלִין שְׂכָרָן מִתְּרוּמַת הַלִּשְׁכָּה. רַבִּי יוֹסֵי אוֹמֵר: הָרוֹצֶה מִתְנַדֵּב הוּא וְשׁוֹמֵר חִנָּם. אָמְרוּ לוֹ: אַתָּה אוֹמֵר כֵּן? אֵין בָּאִין מִשֶּׁל צִבּוּר.
Rabba says: The issue of whether, in the case of ownerless property, viewing effects acquisition of it is a dispute between tanna’im. As we learned in a mishna (Shekalim 9b): The watchmen of the sefiḥim, grain that grew without being purposely planted, of the Sabbatical Year ensured that people did not take this ownerless grain, so that it remained available to be used for the omer offering and the two loaves, i.e., the public offering on Shavuot of two loaves from the new wheat. These watchmen take their wages from the collection of the Temple treasury chamber, as they are employed by the Temple treasury. Rabbi Yosei says: One who so desires can volunteer his services and safeguard the grain, and he has the status of an unpaid bailee. The Rabbis said to him: Do you say so? But according to your view, the omer and the two loaves do not come from communal funds as required, since in reality they come from a private individual, i.e., the bailee.
מַאי לָאו בְּהָא קָמִיפַּלְגִי: דְּתַנָּא קַמָּא סָבַר הַבָּטָה בְּהֶפְקֵר קָנֵי, וְאִי יָהֲיבִי לֵיהּ אַגְרָא – אִין, וְאִי לָא – לָא. וְרַבִּי יוֹסֵי סָבַר הַבָּטָה בְּהֶפְקֵר לָא קָנֵי, וְכִי אָזְלִי צִבּוּר וּמַיְיתִי – הַשְׁתָּא הוּא דְּקָא זָכֵי בֵּיהּ.
The Gemara suggests: What, is it not with regard to this that they disagree: The first tanna holds that in the case of ownerless property, viewing effects acquisition of it, and so the watchman, although he did not lift up the grain, acquires the grain by viewing it. And therefore, if he is given a wage from communal funds, then yes, he is safeguarding it on behalf of the community, and he acquires it for them. But if he is not paid, he has not acquired it for the community, but for himself. And, conversely, Rabbi Yosei holds that in the case of ownerless property, viewing does not effect acquisition of it, and when the community goes and brings the grain for the omer offering and the two loaves, it is only now, at this stage, that they acquire it.
וּמָה ״אַתָּה אוֹמֵר״? הָכִי קָאָמְרִי לֵיהּ: מִדְּבָרֶיךָ לִדְבָרֵינוּ – אֵין עוֹמֶר וּשְׁתֵּי לֶחֶם בָּאִין מִשֶּׁל צִבּוּר.
And what, according to this explanation, is the meaning of the phrase: Do you say so? This is what they were saying to him: If the opinion from your statement that one may volunteer as an unpaid bailee is applied to our statement that in the case of ownerless property, viewing effects acquisition, the result is that the omer offering and the two loaves do not come from communal funds as required.
אָמַר רָבָא: לָא, דְּכוּלֵּי עָלְמָא הַבָּטָה בְּהֶפְקֵר קָנֵי, וְהָכָא חָיְישִׁינַן שֶׁמָּא לֹא יִמְסְרֵם יָפֶה יָפֶה קָמִיפַּלְגִי. דְּרַבָּנַן סָבְרִי: יָהֲבִינַן לֵיהּ אַגְרָא, וְאִי לָא, חָיְישִׁינַן שֶׁמָּא לֹא יִמְסְרֵם יָפֶה יָפֶה.
Rava said: No; the dispute can be explained differently. It can be explained that everyone agrees that in the case of ownerless property, viewing effects acquisition, and here they disagree with regard to the question of whether we are concerned that perhaps he will not give the grain over wholeheartedly to the community. As the Rabbis hold that we give the watchman a wage, and if we do not pay him, but allow him to act as a volunteer, we are concerned that perhaps he will not give the grain over wholeheartedly to the community, as deep down he might feel that the grain really belongs to him and that he is offering it from his own pocket, which means that the omer offering and two loaves are not properly offered by the community.
רַבִּי יוֹסֵי סָבַר לָא חָיְישִׁינַן שֶׁמָּא לֹא יִמְסְרֵם יָפֶה יָפֶה, וּמָה ״אַתָּה אוֹמֵר״? הָכִי קָאָמְרִי לֵיהּ: מִדְּבָרֶיךָ לִדְבָרֵינוּ, דְּחָיְישִׁינַן שֶׁמָּא לֹא יִמְסְרֵם יָפֶה יָפֶה: אֵין עוֹמֶר וּשְׁתֵּי [הַ]לֶּחֶם בָּאִין מִשֶּׁל צִבּוּר.
Conversely, Rabbi Yosei holds that we are not concerned that perhaps he will not hand the grain over wholeheartedly to the community. And what is the meaning of the phrase: Do you say so? This is what they were saying to him: If the opinion from your statement that one may volunteer as an unpaid bailee is applied to our statement that we are concerned that perhaps he will not give the grain over wholeheartedly, the result is that the omer offering and the two loaves do not come from communal funds as required.
אִיכָּא דְאָמְרִי, רָבָא אָמַר: דְּכוּלֵּי עָלְמָא הַבָּטָה בְּהֶפְקֵר לָא קָנֵי, וְהָכָא בְּחָיְישִׁינַן לְבַעֲלֵי זְרוֹעוֹת קָמִיפַּלְגִי. דְּתַנָּא קַמָּא סָבַר דְּתַקִּינוּ רַבָּנַן לְמִיתַּב לֵיהּ אַרְבַּע זוּזֵי, כִּי הֵיכִי דְּלִישְׁמְעוּ בַּעֲלֵי זְרוֹעוֹת וְלִיפְרְשׁוּ מִינַּיְיהוּ. וְרַבִּי יוֹסֵי סָבַר: לָא תַּקִּינוּ.
There are those who say that there is a different version of this discussion: Rava said: It can be explained that everyone agrees that in the case of ownerless property, viewing does not effect acquisition of it, and here, concerning the omer offering, they disagree with regard to the question of whether we are concerned about violent people that may come and seize the grain for themselves. As the first tanna holds that the Sages instituted a directive to give him four dinars, or whatever payment is appropriate for his services as a watchman, so that violent people should hear of this and keep away from the grain, since when they hear that the Temple is paying the watchmen, they will certainly not take the grain. And Rabbi Yosei holds that the Sages did not institute this directive, since there is no concern about violent people.
וּמָה ״אַתָּה אוֹמֵר״? הָכִי קָאָמְרִי לֵיהּ: מִדְּבָרֶיךָ לִדְבָרֵינוּ, אֵין [תְּמִידִין וּמוּסָפִין] בָּאִין מִשֶּׁל צִבּוּר. וְכֵן כִּי אֲתָא רָבִין, אָמַר רַבִּי יוֹחָנָן: חוֹשְׁשִׁין לְבַעֲלֵי זְרוֹעוֹת אִיכָּא בֵּינַיְיהוּ.
And what is the meaning of the phrase: Do you say so? This is what they were saying to him: If we apply the opinion from your statement that one may volunteer as an unpaid bailee, to our statement that the Sages instituted a directive to give him four dinars, the result is that communal offerings do not come from communal funds as required. And likewise, when Ravin came from Eretz Yisrael to Babylonia, he said that Rabbi Yoḥanan says: The question of whether or not we are concerned about violent people is the difference between the opinions of the Rabbis and Rabbi Yosei, i.e., that is the crux of their dispute.
מַתְנִי׳ הַמּוֹצִיא זֶבֶל לִרְשׁוּת הָרַבִּים, הַמּוֹצִיא – מוֹצִיא, וְהַמְזַבֵּל – מְזַבֵּל. אֵין שׁוֹרִין טִיט בִּרְשׁוּת הָרַבִּים, וְאֵין לוֹבְנִים לְבֵנִים. אֲבָל גּוֹבְלִין טִיט בִּרְשׁוּת הָרַבִּים, אֲבָל לֹא לְבֵנִים.
MISHNA: In the case of one who takes manure out to the public domain, in order for it to be transported to fertilize a field, he who takes it out from his property takes it out, and immediately, he who takes it to fertilize the field takes it to fertilize the field. They must relocate the manure immediately without allowing it to sit around in the public domain. Similarly, one may not soak clay in the public domain before it is kneaded, and one may not mold bricks in the public domain since this takes a long time and inhibits use of the public domain by others. But one may knead clay in the public domain, as this process does not take long, but not bricks.
הַבּוֹנֶה בִּרְשׁוּת הָרַבִּים, הַמֵּבִיא אֲבָנִים – מֵבִיא, וְהַבּוֹנֶה – בּוֹנֶה. וְאִם הִזִּיק – מְשַׁלֵּם מַה שֶּׁהִזִּיק. רַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל אוֹמֵר: אַף מְתַקֵּן הוּא אֶת מְלַאכְתּוֹ לִפְנֵי שְׁלֹשִׁים יוֹם.
With regard to one who builds a structure, keeping the building materials in the public domain, he who brings the stones brings them, and immediately, he who builds the structure builds with them, and may not leave them there. And if the stones cause damage before he had a chance to build them into the structure, he must pay for what he damaged. Rabban Shimon ben Gamliel says: One may even prepare his work thirty days beforehand; he may keep the building materials in the public domain for that duration.
גְּמָ׳ לֵימָא מַתְנִיתִין דְּלָא כְּרַבִּי יְהוּדָה. דְּתַנְיָא, רַבִּי יְהוּדָה אוֹמֵר: בִּשְׁעַת הוֹצָאַת זְבָלִים אָדָם מוֹצִיא זִבְלוֹ לִרְשׁוּת הָרַבִּים וְצוֹבְרוֹ כׇּל שְׁלֹשִׁים יוֹם, כְּדֵי שֶׁיְּהֵא נִישּׁוֹף בְּרַגְלֵי אָדָם וּבְרַגְלֵי בְּהֵמָה, שֶׁעַל מְנָת כֵּן הִנְחִיל יְהוֹשֻׁעַ לְיִשְׂרָאֵל אֶת הָאָרֶץ.
GEMARA: The Gemara suggests: Let us say that the mishna is not in accordance with the opinion of Rabbi Yehuda? As it is taught in a baraita (Tosefta 11:8): Rabbi Yehuda says: When it is the time for the manure to be taken out, a person may take his manure out into the public domain and may pile it up for all thirty days, so that it will be trodden on by the feet of people and by the feet of animals, to prepare it for use as fertilizer, since it was on this condition that Joshua bequeathed Eretz Yisrael to the Jewish people. In other words, it is universally accepted that some will relinquish certain rights for the sake of others, and although it may be a nuisance for certain people, this practice is allowed.
אֲפִילּוּ תֵּימָא רַבִּי יְהוּדָה, מוֹדֶה רַבִּי יְהוּדָה שֶׁאִם הִזִּיק – חַיָּיב לְשַׁלֵּם. וְהָתְנַן: מוֹדֶה רַבִּי יְהוּדָה בְּנֵר חֲנוּכָּה שֶׁהוּא פָּטוּר, מִפְּנֵי שֶׁהוּא עוֹשֶׂה בִּרְשׁוּת. מַאי לָאו: רְשׁוּת דְּבֵית דִּין? לָא, רְשׁוּת דְּמִצְוָה.
The Gemara responds: You may even say that the mishna is in accordance with the opinion of Rabbi Yehuda, since Rabbi Yehuda concedes that although he acted within his rights, if the manure caused damage, the one who placed it there is liable to pay. The Gemara asks: But didn’t we learn in a mishna (Bava Kamma 62b): Rabbi Yehuda concedes with regard to a Hanukkah lamp placed in the public domain that ignited a fire and caused damage that he is exempt, because he acts with permission? What, is the reason he is exempt not that he acted with the permission of the court to use the public domain in this manner, which indicates that one who acts with court permission is exempt from liability for damage? The Gemara rejects this suggestion: No, it means that he has the permission of a mitzva. Since it is a mitzva to place the Hanukkah lamp outside, he is exempt from paying for the damage it caused. The mere right to place the item in the public domain does not exempt the owner from liability.
וְהָתַנְיָא: כׇּל אֵלּוּ שֶׁאָמְרוּ מוּתָּרִין לְקַלְקֵל בִּרְשׁוּת הָרַבִּים, אִם הִזִּיק – חַיָּיב לְשַׁלֵּם, וְרַבִּי יְהוּדָה פּוֹטֵר. אֶלָּא מְחַוַּורְתָּא מַתְנִיתִין דְּלָא כְּרַבִּי יְהוּדָה.
The Gemara asks: But isn’t it taught in a baraita: With regard to all these cases in which the Sages said that it is permitted for people to place obstacles in the public domain, if they caused damage, these people are liable to pay, and Rabbi Yehuda exempts them? Evidently, according to Rabbi Yehuda, if one has the permission of the court to put an item in the public domain, he is exempt from paying damages. Rather, it is clear that the mishna is not in accordance with the opinion of Rabbi Yehuda.
אָמַר אַבָּיֵי: רַבִּי יְהוּדָה, וְרַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל, וְרַבִּי שִׁמְעוֹן – כּוּלְּהוּ סְבִירָא לְהוּ: כׇּל מָקוֹם שֶׁנָּתְנוּ לוֹ חֲכָמִים רְשׁוּת וְהִזִּיק – פָּטוּר. רַבִּי יְהוּדָה – הָא דַּאֲמַרַן. רַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל, דִּתְנַן: רַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל אוֹמֵר: אַף מְתַקֵּן הוּא אֶת מְלַאכְתּוֹ לִפְנֵי שְׁלֹשִׁים יוֹם.
Abaye said: Rabbi Yehuda and Rabban Shimon ben Gamliel and Rabbi Shimon all hold that wherever the Sages gave someone permission to perform an action, and in performing this action he causes damage, he is exempt from payment. The Gemara cites the sources for this assertion: It is clear that Rabbi Yehuda is of that opinion based on that which we just said. It is clear that Rabban Shimon ben Gamliel is of that opinion, as we learned in the mishna: Rabban Shimon ben Gamliel says: One may even prepare his work thirty days beforehand.
רַבִּי שִׁמְעוֹן, דִּתְנַן: הָיָה מַעֲמִידוֹ בַּעֲלִיָּיה – צָרִיךְ שֶׁיְּהֵא תַּחְתָּיו מַעֲזִיבָה שְׁלֹשָׁה טְפָחִים, וּבַכִּירָה – טֶפַח. וְאִם הִזִּיק – מְשַׁלֵּם מַה שֶּׁהִזִּיק. רַבִּי שִׁמְעוֹן אוֹמֵר: לֹא אָמְרוּ כׇּל הַשִּׁעוּרִים הַלָּלוּ אֶלָּא שֶׁאִם הִזִּיק פָּטוּר מִלְּשַׁלֵּם.
It is clear that Rabbi Shimon is of that opinion, as we learned in a mishna (Bava Batra 20b): If one was setting up an oven in the upper story, there must be a plaster floor beneath it, which serves as the ceiling of the lower story, at least three handbreadths thick, so that the ceiling below does not burn. And in the case of a stove the plaster floor must be at least one handbreadth thick. And if he causes damage after having taken the necessary precautions, he pays compensation for that which he damaged. Rabbi Shimon says: The Sages said all of these measurements to teach only that if he causes damage he is exempt from paying, as he took all reasonable precautions.
תָּנוּ רַבָּנַן: הַחַצָּב שֶׁמָּסַר לַסַּתָּת – הַסַּתָּת חַיָּיב. הַסַּתָּת שֶׁמָּסַר לַחַמָּר – הַחַמָּר חַיָּיב. הַחַמָּר שֶׁמָּסַר לַכַּתָּף – הַכַּתָּף חַיָּיב. הַכַּתָּף שֶׁמָּסַר לַבַּנַּאי – הַבַּנַּאי חַיָּיב. הַבַּנַּאי שֶׁמָּסַר לָאַדְרִיכָל – אַדְרִיכָל חַיָּיב. וְאִם הִנִּיחַ אֶבֶן עַל הַדִּימוֹס וְהִזִּיקָה – כּוּלָּן חַיָּיבִין לְשַׁלֵּם.
§ The Sages taught: Once the stonecutter has delivered the stones to the chiseler, from that point on, the chiseler is liable for any damage caused by them. Once the chiseler has delivered the stones to the donkey driver to transport them, the donkey driver is liable. Once the donkey driver has delivered the stones to a porter to carry them to the building site, the porter is liable. Once the porter has delivered the stones to the builder, the builder is liable. Once the builder has delivered them to the master builder [adrikhal], who places and straightens the stones on the structure, the master builder is liable. And if he placed a stone upon the row [dimos] of stones and the stone fell off and caused damage, then they are all liable to pay.
וְהָתַנְיָא: אַחֲרוֹן חַיָּיב וְכוּלָּן פְּטוּרִים! לָא קַשְׁיָא: כָּאן בִּשְׂכִירוּת, כָּאן בְּקַבְּלָנוּת.
The Gemara asks: But isn’t it taught in a baraita, that only the last one, the master builder, is liable, and all of them are exempt? The Gemara answers: This is not difficult, as the ruling here, in this baraita, is stated with regard to a case of hiring, and therefore only the last one is liable, whereas the ruling there, in that baraita, is stated with regard to a case of contracting, in which they all agreed to perform the work together, and therefore they are all liable to pay.
מַתְנִי׳ שְׁתֵּי גַּנּוֹת זוֹ עַל גַּב זוֹ, וְהַיָּרָק בֵּינְתַיִם. רַבִּי מֵאִיר אוֹמֵר: שֶׁל עֶלְיוֹן. רַבִּי יְהוּדָה אוֹמֵר: שֶׁל תַּחְתּוֹן. אָמַר רַבִּי מֵאִיר: אִם יִרְצֶה הָעֶלְיוֹן לִיקַּח אֶת עֲפָרוֹ, אֵין כָּאן יָרָק. אָמַר רַבִּי יְהוּדָה: אִם יִרְצֶה הַתַּחְתּוֹן לְמַלֹּאות אֶת גִּנָּתוֹ, אֵין כָּאן יָרָק.
MISHNA: In the case of two gardens that were located one above the other, i.e., a garden on a plateau that borders another garden below, and vegetables grew in-between, out of the wall of soil resulting from the difference in height between the two gardens, Rabbi Meir says: These vegetables belong to the owner of the upper garden. Rabbi Yehuda says: They belong to the owner of the lower one. Rabbi Meir said in explanation of his ruling: If the owner of the upper garden would want to dig and take his dirt and does so, no vegetables would grow here, as that wall made of soil would not exist. The vegetables therefore belong to him. In response, Rabbi Yehuda said: If the owner of the lower garden would want to fill his garden with dirt and does so, thereby raising its level, no vegetables would grow here, as that wall made of soil would not exist. The vegetables therefore belong to him.
אָמַר רַבִּי מֵאִיר: מֵאַחַר שֶׁשְּׁנֵיהֶן יְכוֹלִין לְמַחוֹת זֶה עַל זֶה, רוֹאִין מֵהֵיכָן יָרָק זֶה חַי. אָמַר רַבִּי שִׁמְעוֹן: כׇּל שֶׁהָעֶלְיוֹן יָכוֹל לִפְשׁוֹט אֶת יָדוֹ וְלִיטּוֹל – הֲרֵי הוּא שֶׁלּוֹ, וְהַשְּׁאָר שֶׁל תַּחְתּוֹן.
Rabbi Meir said: Since the two of them can object to each other, as they each have the ability to prevent the vegetable growth, nothing can be decided based on such considerations. Instead, the court considers from where this vegetable lives and derives nourishment, whether from above or from below. Rabbi Shimon said: Any vegetables that the owner of the upper garden can stretch out his hand and take, those vegetables are his, and the rest belong to the owner of the lower garden.
גְּמָ׳ אָמַר רָבָא: בְּעִיקָּרוֹ, כּוּלֵּי עָלְמָא לָא פְּלִיגִי דְּעֶלְיוֹן הָוֵי. כִּי פְּלִיגִי בְּנוֹפוֹ. רַבִּי מֵאִיר סָבַר: שְׁדִי נוֹפוֹ בָּתַר עִיקָּרוֹ. וְרַבִּי יְהוּדָה סָבַר: לָא אָמְרִינַן שְׁדִי נוֹפוֹ בָּתַר עִיקָּרוֹ.
GEMARA: Rava says: With regard to the root of the vegetable growing out of the wall of soil, everyone agrees that it is the property of the owner of the upper garden, since the ground belongs to him. When they disagree, it is with regard to its leaves, which grow above the airspace of the lower garden. Rabbi Meir holds: Cast its leaves after its root, and consider that they too belong to the owner of the upper garden. And Rabbi Yehuda holds: We do not say: Cast its leaves after its root.
וְאַזְדָּא לְטַעְמַיְיהוּ, דְּתַנְיָא: הַיּוֹצֵא מִן הַגֶּזַע וּמִן הַשׇּׁרָשִׁין – הֲרֵי אֵלּוּ שֶׁל בַּעַל הַקַּרְקַע, דִּבְרֵי רַבִּי מֵאִיר. רַבִּי יְהוּדָה אוֹמֵר: מִן הַגֶּזַע – שֶׁל בַּעַל הָאִילָן, וּמִן הַשׇּׁרָשִׁין – שֶׁל בַּעַל הַקַּרְקַע.
The Gemara comments: And they follow their line of reasoning, as it is taught in a baraita with regard to a tree belonging to one individual that grew on land owned by another: That which sprouts from the trunk and from the roots, these belong to the owner of the land. This is the statement of Rabbi Meir. Rabbi Yehuda says: That which sprouts from the trunk belongs to the owner of the tree, and anything that grows from the roots belongs to the owner of the land. This statement demonstrates that according to Rabbi Yehuda, ownership of the sprouts is not determined exclusively based on the ownership of the roots.
