Bava Kamma 29b — the Talmud in English

And Rabbi Yohanan said:

in damage caused

after the fall

there is

a dispute

between Rabbi Meir and Rabbi Yehuda.

And the Gemara wonders:

But at the time of the fall, what [is the law]?

It is implied from Rabbi Yohanan’s words that there is no dispute in this, but

everyone agrees that he is exempt.

And it is impossible to say so.

But from the fact that Rabbi Yohanan said below,

[not [in relation to] the Mishna]: “Two potters who 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 of the second.” And in the Gemara Rabbi Yohanan said:

“Do not say that the Mishna is [the opinion of] Rabbi Meir, who says: One who stumbles is negligent.”

This implies

by inference

from his words

, that Rabbi Meir holds liable

for damage at the time of the fall, while only the Rabbis exempt.

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,

by virtue of the principle that one who stumbles is negligent,

but from the fact that Rabbi Yohanan said below “

Do not say that the Mishna is [the opinion of] Rabbi Meir, who says: One who stumbles is negligent,”

this implies

by inference

from

this that the Rabbis exempt.

And the Gemara answers:

Rather,

actually, Rabbi Yohanan holds that the dispute between Rabbi Yehuda and Rabbi Meir concerns two cases: damage caused at the time of the fall and after the fall, and

this he informs us

Rabbi Yohanan:

It is only in this case that the Rabbis exempt one who abandons his damages,

because

he is compelled

at the time of the fall,

but one who abandons his damages in general,

where the abandonment was not after an accidental fall,

the Rabbis hold liable

him.

It follows that the dispute between Rabbi Yohanan and Abaye is as follows: According to Abaye, the dispute concerning one who abandons his damages applies even after a negligent fall: Rabbi Yehuda exempts and Rabbi Meir holds liable.

But according to Rabbi Yohanan, the dispute applies only in the case of an accidental fall, that of one who stumbles. Rabbi Yehuda, who holds that one who stumbles is compelled, exempts even after the fall, when he abandoned his damages; and Rabbi Meir, who holds that one who stumbles is not compelled and is liable, holds him liable even when he abandoned his damages and they caused damage after the fall.

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

It was stated:

The

one who abandons

his

damages

in the public domain, and they caused damage—

Rabbi Yohanan and Rabbi Elazar disputed.

dispute this matter.

One said:

The one who abandons [his damages] is

liable

for the damage caused by his obstacle.

And one said: He is exempt.

The Gemara discusses this:

Let us say:

Can it be said that

the one who holds liable

holds

like Rabbi Meir,

who says: If his jug broke in the public domain and one slipped on the water, or was struck by the shards, he is liable; and it was explained in the Gemara above that the reason is that one who abandons his damages is liable?

And the one who exempts

holds

like the Rabbis,

Rabbi Yehuda in the Mishna, who says: If he intended [to acquire them], he is liable; if he did not intend [to acquire them], he is exempt. And it is explained in the Gemara that if he intended to acquire the shards, he is liable, and if not, he is exempt, since one who abandons his damages is exempt.

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

And the Gemara rejects [this]: It is impossible to associate the dispute between Rabbi Yohanan and Rabbi Elazar with the dispute between Rabbi Meir and Rabbi Yehuda.

Because Rabbi [Meir] holds liable one who abandons his damages even after he stumbled, [which is somewhat an accident], and nevertheless, if he abandoned his damages, he is liable; if so, all the more so one who abandons his damages without having stumbled is liable.

Rather,

according to Rabbi Meir, everyone agrees

that one who abandons his damages in the public domain is liable.

Where they dispute

Rabbi Yohanan and Rabbi Elazar

is according to the Rabbis.

And this is their dispute:

The one who exempts

holds

like the Rabbis,

who exempt one who abandons his damages.

And the one who holds liable could say to you: I say

that one who abandons his damages is liable, that is,

even according to the Rabbis.

For

the Rabbis exempted only one who abandons his damages in this case,

in the Mishna,

because

it concerns one who abandons his damages that were broken because of his obstacle on the ground,

for he is compelled.

But one who abandons his damages in general,

which fell into the public domain through negligence, even the Rabbis

hold liable.

And now the Gemara comes to explain their dispute, that of Rabbi Yohanan and Rabbi Elazar, according to the Rabbis: who is the one who holds liable and who is the one who exempts?

It may be concluded,

it can be proved

that Rabbi Elazar is the one who says

that one who abandons his damages is

liable.

For we find

that Rabbi Elazar said in the name of Rabbi Yishmael: Two things

by law

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

so that he would be liable for them

. And these are they:

A pit

that he dug

in the public domain,

although it is not his, he is nevertheless liable for damage it caused as though he were its owner.

And leaven

on the eve of Passover

from six

hours

and onward,

for from then leaven became forbidden for benefit, and if so it is not in his possession, since he has no use for it at all; nevertheless, if he did not remove it, he violates [the prohibitions] “it shall not be seen” and “it shall not be found” because of it, as though it were in his possession, because the verse made it as though it were in his possession so that he would be liable for it.

It may be concluded,

indeed it can be inferred from Rabbi Elazar’s words that one who abandons his damages in the public domain is liable; and it follows by inference that Rabbi Yohanan holds that one who abandons his damages is exempt.

But the Gemara wonders:

And did Rabbi Elazar say this,

that one who abandons his damages in the public domain is liable?

But

we find that

Rabbi Elazar said the opposite.

For we learned: One who turns over the dung heap,

dung that is ownerless lying

in the public domain,

and moved it to another place in the public domain,

and another was injured by it, he is liable

the one who turned over the dung

for its damage.

Since in the new place where he left the dung, he is the one who created the obstacle: had he left it in its place, the one who passed here would not have stumbled over it

.

And

concerning this

Rabbi Elazar said: It was taught

that he is liable for its 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,

although he created the pit.

And the reason for this is that if he did not intend to acquire it, he is exempt, since the pit for which the Torah made one liable is only his pit, and not a pit in the public domain. And this one, who did not intend to acquire the dung, is like one who digs a pit in the public domain

.

Evidently,

it is proven that Rabbi Elazar held that the

one who abandons his damages is exempt.

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

,

so one who abandons his damages is exempt. Yet above the Gemara proved that Rabbi Elazar holds that one who abandons his damages in the public domain is liable ! Rav Adda bar Ahava said:

Actually, Rabbi Elazar holds that one who abandons his damages is liable, as is implied by the saying, “Two things are not in a person’s possession, but the verse made them as though they were in his possession.” And the reason Rabbi Elazar exempted the one who turned over the dung was that there it concerns a case in which he turned it over and then

returned it to its place,

and the damage occurred there. Since the damage would have occurred in that same place even if he had not touched the dung initially, it follows that 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.

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

To one who finds a pit

in the public domain

open, and covers it, and

afterward

returns and uncovers it,

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

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

Mar Zutra son of Rav Mari said to Ravina: Are they comparable—

lifting a rolling clod and returning it to its place, to covering a pit and then uncovering it again?!

Behold,

there,

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

never ceased to exist,

since the pit is not sealed with earth, but is only covered with a cover; and since the pit exists, the first digger is liable for its damage, even if the second one, who covered it, subsequently removed its cover.

But

here,

when he lifted the rolling clod,

the first act ceased to exist,

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

This is comparable only to one who finds an uncovered pit and fills it in,

he filled it with earth,

and then dug it again, for the first act ceased to exist, and it stood in his authority

of the second one, and the second one is liable for its damage.

Rather, Rav Ashi said,

one cannot bring proof from the words of Rabbi Elazar, who said: “They taught this only when he intended to acquire them, but when he did not intend to acquire them, he is exempt”—that one who renounces his hazards is exempt. For the Mishna is speaking

when he turned

the rolling clod

to less than three [handbreadths],

and just as he does not acquire through lifting less than three, so too he is not considered to have dug a new pit, and the first act did not cease through his lifting it.

In any event, if he intended to acquire the rolling clod, he can acquire it through the law of watching over ownerless property; and once it becomes his property, he is liable for the damage of the pit.

And the Gemara discusses:

And what pressure was there

that compelled

Rabbi Elazar

to explain and

establish it,

to establish the Mishna

as, for example, when he turned it to less than three,

so that he does not acquire it through lifting?

And the reason

and the reason that the one who turns it is liable is

that when he intended to acquire it

through the law of watching over ownerless property,

but when he did not intend to acquire it, he is not.

Let him establish it

Rabbi Elazar should establish the Mishna in a case where he lifts the rolling clod

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

Rava said: The Mishna troubled him,

the wording of the Mishna was difficult to Rabbi Elazar:

Why specifically “turned”

the rolling clod;

let it teach “lifted”?

Rather, learn from it

that the Mishna specifically did not state “lifted,” because it is speaking of one who did not lift it, but turned the rolling clod to less than three, and

every “turning” is to less than three.

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

And the Gemara infers:

And from the fact that Rabbi Elazar said, “One who renounces his hazards

is

liable,” Rabbi Yohanan said: He is exempt.

And the Gemara wonders:

And did Rabbi Yohanan say this,

that one who renounces his hazards is exempt?

But we learned [

folio 30a]:

“One who conceals 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 was injured by them, he is liable for his damage.”

And Rabbi Yohanan said:

What was stated—“One who fences his fence with thorns is liable”—

was taught only in the case of one who projects,

where the thorns extended into the public domain;

but in the case of one who constricts,

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

he is exempt.

And the Gemara discusses:

In the case of one who constricts, what is the reason

that Rabbi Yohanan said that he is

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

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

And if so, it is heard

by inference

from

this, that the liability of a pit

the pit for which the Torah made him liable

is in the public domain.

Apparently,

Rabbi Yohanan holds that

one who renounces his hazards

in the public domain

is liable,

and how did the Gemara seek to say that according to Rabbi Yohanan one who renounces his hazards is exempt?

The Gemara rejects this:

No,

one cannot bring proof from the words of Rabbi Yohanan concerning the law of one who renounces his hazards.

For

I will always say to you

that according to Rabbi Yohanan, one who

renounces

his

hazards is exempt.

And

if you will raise an objection:

In the case of one who constricts, what is the reason

that Rabbi Yohanan said that he is

exempt?

The answer is:

Because it was stated concerning it: Rav Aha son of Rav Ika said: Because it is not the practice of people to rub against walls.

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

But one who projects is liable, since he placed a hazard in the public domain.

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

And the Gemara asks:

And did Rabbi Yohanan say this?

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

And we learned: [

below, 52b]

“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 explained that one is liable for a pit in the public domain, and the same law applies to one who renounces his hazards.

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

And for this reason the Gemara retracts:

Rather, in fact, Rabbi Yohanan said

that one who renounces his hazards

is liable.

And the Gemara infers:

From the fact that Rabbi Yohanan said

that one who renounces his hazards

is liable,

it follows that

Rabbi Elazar said: He is exempt.