Bava Kamma 30b (ל:) — the Talmud in English

Rav Ashi said:

The Mishna always obligates one who takes out his straw and hay, even at the time when people take out manure. One should not infer from the Mishna that it is not in accordance with Rabbi Yehuda, who exempts one who takes out manure into the public domain and causes damage, because in our Mishna

“his straw and hay”

we learned,

and even Rabbi Yehuda agrees that one who takes out his straw and hay and they cause damage is liable,

because they are slippery

and cause people to slip on them.

But if one took out into the public domain manure that does not cause people to slip, the tanna of our Mishna agrees that he is exempt, in accordance with Rabbi Yehuda.

It was stated in the Mishna: “One who takes out his straw and hay into the public domain for use as manure,”

whoever comes first acquires them.

Rav said:

Whoever comes first can acquire

both the substance itself

of the straw and hay, and

both their improvement

—what they improved while in the public domain and thereby became manure.

And Ze’iri said:

Whoever comes first

with regard to their improvement

acquires it,

but not the substance itself.

The Gemara explains:

With regard to what do they disagree?

Rav holds: They penalized the substance itself on account of its improvement.

And Ze’iri holds: They did not penalize the substance itself on account of its improvement.

The Gemara brings a proof for Ze’iri and a difficulty against Rav:

We learned

in the latter clause of our Mishna:

“One who turns over dung in the public domain, and another is harmed by it,”

the one who turns it over

is liable for its damage,

because he acquired it. The Gemara infers: It follows that the one who turns it over is liable only for its damage,

whereas it does not teach: Whoever comes first acquires it.

The reason is that dung does not improve from remaining in the public domain. Since the penalty applies only to the improvement, in this case, where there is no improvement, there is no penalty, in accordance with Ze’iri. This presents a difficulty to Rav, who holds that they penalized the substance itself.

The Gemara rejects this: According to Rav, one can explain that

the tanna taught in the first clause

that whoever comes first acquires them,

and the same is true of the latter clause,

namely, that with regard to one who turns over dung, whoever comes first acquires it as well.

The Gemara expresses astonishment:

But it was taught concerning it

in a beraita: Dung

is forbidden on account of theft,

implying that it is not permitted to acquire the dung.

The Gemara answers:

When it teaches, “It is forbidden on account of theft,” it refers to the entire Mishna.

That is, the manure and dung belong

to the one who came first and acquired them,

and it is forbidden to steal them from him. In any event, when dung lies in the public domain, whoever comes first acquires it. The Gemara rejects this:

But it does not teach this, for we learned: “One who takes out his straw and hay into the public domain”

so that they will become

manure, and another is harmed by them,

the one who took them out

is liable for its damage.

And whoever comes first

to acquire them

acquires them, and it is permitted

for him to take them for himself, and he need not be concerned

on account of

the prohibition of

theft.

And one who turns over dung into the public domain, and another is harmed by it,

the one who turns it over

is liable, and it is forbidden

for others to acquire the dung for themselves,

because

the Sages did not penalize the owner of the dung, and one who takes it

is guilty of theft.

It is thus clear that there is a distinction between one’s straw and hay and dung: With regard to one who takes out his straw and hay, it is said that whoever comes first acquires them and that this is permitted with regard to theft; whereas with regard to one who turns over dung, it is said that it is forbidden on account of theft.

The Gemara’s proof for Ze’iri now returns. Since it forbade acquiring dung but permitted acquiring straw and hay, it follows that the reason for the distinction is that dung has no improvement, and therefore they did not penalize the substance itself on account of its improvement. Straw and hay, by contrast, do have improvement, and therefore one may acquire them. This presents a difficulty to Rav.

Rav Naḥman bar Yitzḥak said:

Can Rav really be refuted merely from the prohibition against acquiring

dung?

There is a distinction between dung and other things, for

something that has improvement,

such as manure, straw, and hay,

Rav holds that they

penalized the substance itself on account of its improvement,

and one may acquire the improvement as well. But

something that has no

potential

for improvement,

such as dung,

they did not penalize

its substance. Therefore it is forbidden to acquire the dung.

They raised a dilemma: According to the one who says

[Rav]

they penalized the substance itself on account of its improvement,

is the question whether

we impose the penalty immediately,

so that even before the improvement has developed one may acquire the substance itself,

or

perhaps only

when the improvement develops do we impose the penalty,

so that one acquires both the substance and the improvement.

Come and hear,

a proof that according to Rav one may acquire the substance itself even before the improvement has developed.

From the fact that we are discussing,

that the Gemara brought a proof for Ze’iri and against Rav from the case of one who turns over

dung,

where the Mishna did not say that whoever comes first acquires it; rather, it said that it is forbidden to acquire it. This implies that one can acquire the substance immediately. For if one had to wait until the improvement developed, dung has no improvement, and even according to Rav it would be impossible to acquire it. What, then, did the Gemara prove against Rav from the fact that dung cannot be acquired? It is therefore evident that one may acquire the substance immediately, even before the improvement arrives.

The Gemara rejects this:

But can you really say so?

Do you think that a proof can be brought in support of Rav from the Gemara’s question?

When we were discussing this,

the possibility of challenging Rav from the case of one who turns over

dung

applied

before the answer was given,

before

Rav Naḥman

gave his answer.

But

after Rav Naḥman gave his answer,

that Rav agrees with regard to something that has no improvement,

can dung be brought into the discussion at all?

Let us say

that the dispute between Rav and Ze’iri is

a dispute between tannaim:

For it was taught:

A document

of a loan

in which it was written

that the loan was given on condition that the borrower pay

interest. They impose a penalty upon him,

the lender,

and he may collect neither the principal nor the interest; this is the statement of Rabbi Meir.

And the Sages say:

The lender

collects the principal, but not the interest.

Let us say that Rav, who said

that one who takes out his straw and hay is penalized with regard to the substance itself on account of its improvement, holds

in accordance with Rabbi Meir,

who penalized the lender of interest so that he could collect neither even the principal.

And Ze’iri, who said

that only the improvement was penalized, holds

in accordance with the Sages,

who did not penalize the lender with regard to the principal, but only prevented him from collecting the interest.

The Gemara assumes that according to the one who penalizes a person who takes out manure by depriving him even of the principal, it is reasonable that interest should likewise be penalized so that he may not collect even the principal; and one who does not impose the penalty with regard to manure does not impose it with regard to interest.

Rav could say to you: When I say

that they penalized the substance itself on account of its improvement, I mean

even according to

the opinion of

the Sages,

who did not penalize the lender of interest with regard to the principal.

For

the Sages stated their position there only

that in the case of a document containing interest, the lender collects the principal

because

the collection of the

principal is permitted,

and therefore they did not penalize him.

But here,

with regard to one who takes out his straw and hay, they penalized him even with regard to the principal, because

the principal itself causes damage

to those walking on the roads.

And Ze’iri could say to you: When I say

that they did not penalize the substance itself on account of its improvement, I mean

even according to

the opinion of

Rabbi Meir,

who says that with regard to a document containing interest, the lender collects neither the principal nor the interest.

For

Rabbi Meir stated his position there only

that the principal should be penalized

because

of the fact that

from the time of the writing

of the document, he transgressed the prohibition of interest by

setting an amount for it,

assigning the interest to the loan and violating the prohibition, “You shall not place interest upon him.”

But here,

with regard to one who leaves his straw and hay in the public domain,

who can say that it will cause damage?

Therefore they did not penalize the substance itself on account of its improvement.

Let us say: It is a dispute between these tannaim:

as it is taught:

One who removes

his

straw and stubble into the public domain

so that they become fertilizer,

and another was injured by them, he is liable for the damage.

And whoever is first to take possession of them acquires them. And they are forbidden on account of theft.

Rabbi Shimon ben Gamliel says: Anyone who creates hazards in the public domain and they cause damage is liable to pay, and whoever is first to take possession of them acquires them, and they are not forbidden on account of theft.

Apparently,

this very statement is difficult: You said

that according to the first tanna

whoever is first to take possession of them acquires them,

which implies that they are no longer under their owners’ control,

and then it says: They are forbidden on account of theft,

which implies that it is forbidden to take them.

Rather, is it not that

the first tanna

means as follows: Whoever is first to take possession of them acquires their improvement, but they are forbidden on account of theft with regard to their substance,

in accordance with the opinion of Ze’iri?

And Rabban Shimon ben Gamliel comes to say that even with regard to their substance as well, whoever is first to take possession of them acquires them.

It follows that the first tanna agrees with Ze’iri, while Rabban Shimon ben Gamliel agrees with Rav.

According to Ze’iri, it is certainly a dispute between tannaim,

and he holds in accordance with the first tanna and not in accordance with Rabban Shimon ben Gamliel.

But

with regard to Rav, can one say that it is a dispute between tannaim,

that according to his view the halakha is in accordance with Rabban Shimon ben Gamliel and not in accordance with the Rabbis?

Rav could say to you: Everyone agrees that they fined the substance on account of the improvement,

even the Rabbis.

And here,

when the Rabbis said, “Whoever is first to take possession of them acquires them, and they are forbidden on account of theft,” their intention was that as a matter of law, the halakha is that whoever is first acquires them, even their substance. However, if he comes to ask us whether he is permitted to acquire their substance, we tell him that he is forbidden to do so on account of theft.

And

they disagree over the principle that although it is the halakha, this ruling is not taught for practical instruction:

according to the Rabbis, this is not taught for practical instruction, whereas according to Rabban Shimon ben Gamliel, it is taught for practical instruction.

For it was stated: Rav Huna said in the name of Rav: The halakha is that this is the ruling, but it is not taught for practical instruction. Rav Adda bar Ahava said: The halakha is that this is the ruling, and it is taught for practical instruction.