Bava Kamma 29b (כט:) — the Talmud in English

And Rabbi Yohanan said:

there is

a dispute

regarding damage caused

after the fall

between Rabbi Meir and Rabbi Yehuda.

The Gemara asks:

But what is the law at the time of the fall?

It is apparent from Rabbi Yohanan’s words that there is no dispute in that case, rather,

everyone agrees that he is exempt.

But it is impossible to say this.

But from the fact that Rabbi Yohanan says below,

not regarding the Mishna: “Two potters were walking in the public domain, and the first stumbled and fell, and the second stumbled over the first; the first is liable for the damage caused to the second.” And in the Gemara Rabbi Yohanan said]:

“Do not say that the Mishna is the opinion of Rabbi Meir, who says that one who stumbles is negligent.”

This implies

by inference

from his words

, that Rabbi Meir holds him liable

for damage caused at the time of the fall, whereas only the Rabbis exempt him.

Rather, what can be said?

If we say that Rabbi Yohanan holds that for damage caused at the time of the fall

everyone agrees that he is liable

because one who stumbles is negligent,

but from the fact that Rabbi Yohanan says below “Do not say that the Mishna is the opinion of Rabbi Meir, who says that one who stumbles is negligent,”

this implies

by inference

from this

that the Rabbis exempt him.

The Gemara answers:

Rather,

Rabbi Yohanan actually holds that the dispute between Rabbi Yehuda and Rabbi Meir concerns both cases: damage caused at the time of the fall and damage caused afterward.

And Rabbi Yohanan teaches us

that

the Rabbis exempt one who renounces ownership of his hazards in this case

because

he is an accident victim

at the time of the fall,

but with regard to one who renounces ownership of his hazards in an ordinary case,

where the fall was not accidental,

the Rabbis hold him liable,

Thus, the dispute between Rabbi Yohanan and Abaye is as follows: According to Abaye, the dispute regarding one who renounces ownership of his hazards applies even after a negligent fall: Rabbi Yehuda exempts him, whereas Rabbi Meir holds him liable.

According to Rabbi Yohanan, the dispute applies only in the case of an accidental fall, when one stumbled. Rabbi Yehuda, who holds that one who stumbles is an accident victim, exempts him even after the fall when he renounced ownership of his hazards. Rabbi Meir, who holds that one who stumbles is not an accident victim and is liable, holds him liable even when he renounced ownership of his hazards and they caused damage after the fall.

But after a negligent fall, Rabbi Yehuda agrees that he is liable.

It was stated:

One who

renounces ownership of

his

hazards

in the public domain, and they cause damage—

Rabbi Yohanan and Rabbi Elazar

dispute this matter.

One said:

One who renounces ownership

is liable

for damage caused by his obstacle.

And one said: He is exempt.

The Gemara discusses this:

Shall we say

that

the one who holds him liable

holds

in accordance with Rabbi Meir,

who says: If one’s jug broke in the public domain and someone slipped on the water or was injured by the shards, he is liable? The Gemara explained above that the reason is that one who renounces ownership of his hazards is liable.

And the one who exempts him

holds

in accordance with the Rabbis,

that is, Rabbi Yehuda in the Mishna, who says that if one intended to acquire the shards he is liable, but if he did not intend to acquire them he is exempt. The Gemara explains that if he intended to acquire the shards, he is liable, and if not, he is exempt, since one who renounces ownership of his hazards is exempt.

It follows that the amoraim disputed a matter in which the tannaim had already disputed?!

The Gemara rejects this: It is impossible to base the dispute between Rabbi Yohanan and Rabbi Elazar on the dispute between Rabbi Meir and Rabbi Yehuda.

This is because Rabbi Meir holds one liable for renouncing ownership of his hazards even after stumbling, [since this involves a certain degree of accident ], and nevertheless, if he renounced ownership of his hazards, he is liable. Therefore, all the more so, one who renounces ownership of his hazards without having stumbled is liable.

Rather,

according to Rabbi Meir, everyone agrees

that one who renounces ownership of his hazards in the public domain is liable.

They dispute—

Rabbi Yohanan and Rabbi Elazar—

according to the Rabbis.

And this is their dispute:

The one who exempts him

holds

in accordance with the Rabbis,

who exempt one who renounces ownership of his hazards.

And the one who holds him liable can say to you: I say

that one who renounces ownership of his hazards is liable,

even according to the Rabbis.

For

the Rabbis exempted him only in the case of one who renounces ownership of his hazards here,

in the Mishna,

because

the case concerns hazards that broke as a result of his stumbling on the ground,

so that he is an accident victim.

But with regard to one who renounces ownership of his hazards in an ordinary case,

where they fell into the public domain through negligence, even the Rabbis

hold him liable.

The Gemara now comes to explain the dispute between Rabbi Yohanan and Rabbi Elazar according to the Rabbis: Which one holds him liable and which one exempts him?

Come and conclude [that is, it can be proven]

that Rabbi Elazar is the one who says

that one who renounces ownership of his hazards

is liable.

For we find

that Rabbi Elazar said in the name of Rabbi Yishmael: There are two things

that by law

are not in a person’s possession, but the Torah treats them as though they were in his possession,

so that he is liable for them

. And these are they:

A pit

that he dug

in the public domain—although it is not his, he is liable for damage it causes as though he were its owner.

And leaven

on the eve of Passover,

from six

hours

and onward,

when leaven becomes forbidden to benefit from, and therefore is not in his possession, since he has no use for it; nevertheless, if he does not remove it, he violates the prohibitions of “it shall not be seen” and “it shall not be found,” as though it were in his possession, because the Torah treats it as though it were in his possession so that he will be liable for it.

Come and conclude:

It can indeed be inferred from Rabbi Elazar’s statement that one who renounces ownership of his hazards in the public domain is liable; and consequently it follows that Rabbi Yohanan holds that one who renounces ownership of his hazards is exempt.

But the Gemara asks:

Did Rabbi Elazar really say this,

that one who renounces ownership of his hazards in the public domain is liable?

But

we find that

Rabbi Elazar said the opposite.

As we learned: One who turns over a pile of

dung belonging to no one, lying

in the public domain,

and moves it to another place in the public domain,

and another person is injured by it, he is liable—

the one who turned over the dung is liable

for the damage.

For at the new place where he left the dung, he created the obstacle; had he left it in its original place, the person who passed there would not have stumbled over it

.

And

regarding this

Rabbi Elazar said: This was stated

with regard to liability for the damage

, only

when

he intended to acquire it

when he turned it over.

But if he did not intend to acquire it, he is exempt,

even though he created the pit.

The reason is that if he did not intend to acquire it, he is exempt, because the pit for which the Torah imposes liability is only one’s own pit, and not a pit in the public domain. Since he did not intend to acquire the dung, he is like one who digs a pit in the public domain

.

Evidently,

it is clear that Rabbi Elazar holds that

one who renounces ownership of his hazards is exempt.

For just as one who digs a pit in the public domain is exempt

,

so too one who renounces ownership of his hazards is exempt. Yet earlier the Gemara proved that Rabbi Elazar holds that one who renounces ownership of his hazards in the public domain is liable! Rav Adda bar Ahava said:

Rabbi Elazar always holds that one who renounces ownership of his hazards is liable, as implied by the statement: “There are two things that are not in a person’s possession, but the Torah treats them as though they were in his possession.” The reason Rabbi Elazar exempted the one who turned over the dung is that the case there is one in which he turned it over and then

returned it to its original place,

and the damage occurred there. Since the damage would have occurred in that same place even if he had not touched the dung in the first place, turning over the dung does not constitute digging a pit. Therefore, if he did not intend to acquire it, it is as though he had never touched the dung at all.

Ravina said: Rav Adda bar Ahava’s analogy is comparable to what?

To one who finds a pit

in the public domain,

open, and covers it, and

afterward

opens it again,

for the first digger is liable, whereas the second is not considered to have dug a new pit, since the pit was never actually sealed.

The same law applies to one who lifts the rolling clod and returns it to its place: he is not considered to have dug a new pit, and only the first person who placed the clod is liable.

Mar Zutra, son of Rav Mari, said to Ravina: Are these cases comparable?

Lifting the rolling clod and returning it to its place is comparable to covering a pit and then uncovering it again!?

After all,

there,

in the case of one who covers a pit and then uncovers it, the reason he is exempt is that

the effect of the first act was never removed,

since the pit is not sealed with earth, but merely covered with a cover. And once the pit remains in existence, the first digger is liable for its damages, even if the second person who covered it subsequently removed its cover.

But

here,

when he lifted the rolling clod,

the effect of the first act was removed,

and if the one who lifted it subsequently replaces the clod, he is like one who digs a new pit and is liable.

It is comparable only to one who finds an uncovered pit, fills it,

fills it with earth,

and then digs it again, for the effect of the first act has been removed, and it remains in the possession

of the second person, who is liable for its damages.

Rather, Rav Ashi said:

No proof may be brought from the statement of Rabbi Elazar, who said, “They taught this only when he intended to acquire them, but if he did not intend to acquire them, he is exempt,” that one who abandons his hazards is exempt. For the Mishna is speaking

when he turned over

the rolling clod

to less than three handbreadths,

and just as one does not acquire an object by lifting it less than three handbreadths, so too he is not considered to have dug a new pit, and the effect of the first act was not removed by his lifting it.

Nevertheless, if he intended to acquire the rolling clod, he can acquire it through the principle of acquiring ownerless property by watching over it. And once it becomes his property, he is liable for the damages caused by the pit.

The Gemara discusses:

And what compelled

him

Rabbi Elazar

to interpret

and establish it

by establishing the Mishna in a case

such as when he turned it over to less than three handbreadths,

so that he did not acquire it through lifting?

And the reason

for this, that the one who turns it over is liable, is

that when he intended to acquire it

through the principle of acquiring ownerless property by watching over it;

but if he did not intend to acquire it, he is not liable.

Let him establish it

by having him lift the rolling clod

more than three handbreadths, and even though he did not intend to acquire it, he is liable.

Rava said: The Mishna posed a difficulty for him;

the wording of the Mishna was difficult for Rabbi Elazar:

Why specifically does it say, “He turned over”

the rolling clod,

rather than teach, “He lifted it”?

Rather, conclude from it:

the Mishna deliberately did not state “he lifted it,” because it is speaking of one who did not lift it, but rather turned over the rolling clod less than three handbreadths, and

whenever the term “turned over” is used, it means less than three handbreadths.

And since this is so, the Gemara’s proof from Rabbi Elazar’s words is reinstated: the Torah made a person’s pit as though it were in his possession. It follows that one who abandons his hazards is liable.

The Gemara infers:

And from the fact that Rabbi Elazar said,

“one who abandons

is liable,” Rabbi Yoḥanan said that he is exempt.

The Gemara raises a difficulty:

But did Rabbi Yoḥanan actually say this,

that one who abandons his hazards is exempt?

But we learned

[30a]:

“One who places a thorn or glass, or one who fences his fence

adjacent to the public domain

with thorns,

and they injure the public,

or a fence that fell into the public domain and another person was injured by them, is liable for his damage.”

And Rabbi Yoḥanan said:

Regarding what was stated, “One who fences his fence with thorns is liable,”

they taught this only when the thorns project,

so that the thorns extend into the public domain,

but when he narrows,

he sets the fence within his own domain and the thorns protrude above his own ground, where the public passes,

he is exempt.

The Gemara discusses:

What is the reason that one who narrows

is, according to Rabbi Yoḥanan,

exempt? Is it not because it is a pit in his own domain,

and one is not liable for a pit in his own domain?

And if so, it follows

by inference

from

, that the liability for a pit

—the pit for which the Torah made one liable—

applies in the public domain.

Evidently,

Rabbi Yoḥanan holds that

one who abandons his hazards

in the public domain

is liable,

so how could the Gemara have sought to say that according to Rabbi Yoḥanan one who abandons his hazards is exempt?

The Gemara rejects this:

No,

no proof may be brought from Rabbi Yoḥanan’s statement regarding the law of one who abandons his hazards.

For

I will always say to you

that according to Rabbi Yoḥanan,

one who abandons

his

hazards is exempt.

And

if you will raise the difficulty,

what is the reason that one who narrows

is, according to Rabbi Yoḥanan,

exempt?

The answer is:

Because it was stated concerning this: Rav Aḥa, son of Rav Ika, said: Because it is not the way of people to rub against walls.

Therefore, he is not considered to have placed a hazard in the public domain, and one who rubs against the wall is causing damage to himself.

But in the case of projecting thorns, he is liable, since he placed a hazard in the public domain.

And since this is so, the Gemara remains with the assumption that Rabbi Yoḥanan holds that one who abandons his hazards is exempt.

The Gemara raises another difficulty:

But did Rabbi Yoḥanan actually say this?

But Rabbi Yoḥanan said: The halakha follows an unattributed Mishna.

And we learned:

[below, 50b]

“One who digs a pit in the public domain, and an ox or a donkey falls into it and dies

is liable,”

and it is clear that one is liable for a pit in the public domain, and the same should apply to one who abandons his hazards.

And according to Rabbi Yoḥanan, does the halakha follow this ruling because it is an unattributed Mishna?

For this reason, the Gemara retracts its previous statement:

Rather, in truth, Rabbi Yoḥanan said

that one who abandons his hazards

is liable.

The Gemara infers:

From the fact that Rabbi Yoḥanan said

that one who abandons his hazards

is liable,

it follows that

Rabbi Elazar said that he is exempt.