Bava Kamma 31a (לא.) — the Talmud in English

And the Gemara raises a difficulty:

Really?

Did Rav Huna maintain that one may not instruct the public to act in this manner?

But Rav Huna declared ownerless bundles of grain,

meaning that he instructed the public that they could acquire grain belonging to someone who had left it in the public domain. And likewise,

Rav Adda bar Ahava declared ownerless

the saliqosta,

meaning that he instructed the public that they could acquire date refuse that had been placed in the public domain as animal fodder.

Granted, Rav Adda bar Ahava

issued this instruction

in accordance with his ruling,

as he said that this is the halakha and that one may instruct the public accordingly.

But as for Rav Huna, shall we say that he retracted his ruling?

And the Gemara answers: Actually, Rav Huna maintained that this is the halakha, but one may not instruct the public accordingly. In that case, however, he instructed them to declare the grain ownerless because

those

who had left it in the public domain

were permitted,

as they had been warned several times to clear the public domain, and when they failed to do so, Rav Huna instructed the public that they were permitted to acquire the grain.

Mishna:

Two potters,

owners of pots,

were walking one after the other, and the first stumbled

on the ground

and fell,

and as a result

the second stumbled over the first

and the second was injured and his pots broke,

the first is liable for the damage caused to the second.

In the Gemara in Bava Metzia [p. ..] it is found that there is a distinction between one who stumbles on a slope and one who stumbles on a straight road, and likewise "Tur" [sec. TYG] wrote 'Two potters who walked one after another etc.' if he could not have stood, Rav Alfasi ruled that he is exempt. And it is evident from his words that if the first could not prevent the second's damage he is exempt. And the Sema objected [sec. TIV] why the Tur did not mention that if he stumbled on a straight road he is liable even if he could not prevent the second's fall, because he is negligent in the very act of stumbling as explained in his section 304. And Rabbi Ch. replied in his note on the Mishna that as explained below in chapter one concerning two people walking in the public domain, since both have permission to be there, if they injure each other they are exempt, [but if they injure by their hands they are liable]. And here too it is spoken that both potters walked in permissive domain, and the second was damaged by the first; therefore from the perspective of human-caused damage the first is exempt. That is, even though now the first lies in the public domain from his negligence, he does not become bereft of permission; both are in permission and injured each other while permitted and are exempt. See the glosses of Chazon Ish who raised an objection to his words. [Hoshen Mishpat 304] likewise ruled that one who transports a barrel from one place to another on a level road is negligent. [See there in the Beit Yosef and the Siftei Kohen, subsection 1, regarding the view of the other early authorities.] Apparently, here too, the liability of the one who stumbled applies when he stumbled on a level road. However, it is explained below in the Gemara that the one who stumbled is not liable for the obstacle he created, but for failing to stand up or to warn the person coming after him. In this respect, there is no distinction regarding how he fell: whenever he could have prevented the second person from falling and failed to do so, he is liable. And so wrote "Nimukhei Yosef": "The first who stumbled — we do not distinguish between a place of a slope and not a place of a slope; in general." It follows that the one who stumbled on a straight road is liable by the law of a stumbler, and since our Mishna deals with a stumbler on a slope whose liability is not for the act of stumbling itself but for not having prevented the second's stumble. And behold It makes no difference whether the first stumbled on a slope or not on a slope; we do not distinguish between them at all." It follows that one who stumbles on a level road is liable by virtue of having stumbled, while our Mishna deals with one who stumbled on a slope, where he is not liable for the obstacle itself but for failing to prevent the second person's obstacle. And "Tur" [sec. TYG] wrote 'Two potters who walked one after another etc.' if he could not have stood, Rav Alfasi ruled that he is exempt. And it is evident from his words that if the first could not prevent the second's damage he is exempt. And the Sema objected [sec. TIV] why the Tur did not mention that if he stumbled on a straight road he is liable even if he could not prevent the second's fall, because he is negligent in the very act of stumbling as explained in his section 304. And Rabbi Ch. replied in his note on the Mishna that as explained below in chapter one concerning two people walking in the public domain, since both have permission to be there, if they injure each other they are exempt, [but if they injure by their hands they are liable]. And here too it is spoken that both potters walked in permissive domain, and the second was damaged by the first; therefore from the perspective of human-caused damage the first is exempt. That is, even though now the first lies in the public domain from his negligence, he does not become bereft of permission; both are in permission and injured each other while permitted and are exempt. See the glosses of Chazon Ish who raised an objection to his words. [413] wrote: Two potters who walked one behind the other, and so on; if the first was unable to stand, Rav Alfasi ruled that he is exempt. It is clear from his words that if the first could not prevent the damage to the second, he is exempt. The Sema [412 and 6] asked why the Tur did not mention that one who stumbled on a level road is liable even if he could not prevent the second person from falling, since he was negligent in the stumbling itself, as is explained in his ruling in section 304. Rabbi Hayyim [Hilkhot Sekhirut 3:2] answered on the basis of what is explained below, 48a: when two people are walking in the public domain, since both have permission to be there, if they injure one another they are exempt [although if they deliberately injure one another they are liable]. Here too, the two potters were walking with permission, and the second was injured by the first; therefore, with regard to the first as a person who causes damage, he is exempt. That is, although the first is now lying in the public domain through his negligence, he has not thereby become someone present there without permission. Rather, both are there with permission, and when they injure one another while there with permission, they are exempt. See the glosses of the Hazon Ish, who challenged this explanation. In the Gemara below [31b] it is explained that according to Rish Lakish [there] the first is liable only in the case that he blocked the entire width of the road as in a shilta [thrown carcass], and there it is explained in Tosafot that in a case where he did not block entirely the last must be careful not to follow so as to stumble; and according to Rabbi Yehuda there is a prohibition from the outset to follow the first lest he be stopped. According to this it must be said that our Mishna deals with the case where the first potter walked in a manner that his barrel blocks the width of the road. And so wrote Torat Hayyim. But below, on 32b, it appears that our Mishna is not speaking of such a case [and, in particular, according to the Tosafot, it is impossible for a barrel to block the entire width of the road]. Accordingly, it is difficult: Why is the first liable for the damage suffered by the second? The Tosafot on 32a [s.v. Deramya] answered that after the first potter fell, the last person could not see him, and therefore was not obligated to take care. Consequently, the first is liable [if he did not stand or warn, as the Gemara explains]. However, according to Rabbi Yehuda, the difficulty remains: Why did the last potter initially walk behind the first? Since the first was not walking across the entire width of the road, the last should have walked on the other side of the road, so that if the first fell he would not stumble over him. It would then follow that he caused the damage to himself. The Maharsha answered that there is a distinction between two potters walking one behind the other and a person carrying a barrel followed by a person carrying a beam. A barrel is likely to break when it strikes a beam. But with two potters, there is no concern that the barrel will break even if the second stumbles over the first. Therefore, the second potter was permitted to walk behind the first, and he need not be concerned about the first falling, since such an occurrence is uncommon.

The Gemara explains what damage is involved and for what reason the first potter is liable for the damage to the second.

Gemara:

The Gemara cites a dispute between amoraim concerning the reason for the first potter’s liability.

Rabbi Yohanan said: Do not say that our Mishna is the opinion of Rabbi Meir, who said

[29a]

“One who stumbles is negligent,”

and therefore the first

is liable

for the damage to the second.

Rather, even according to the Rabbis, who say

that one who stumbles

is an unavoidable victim and is exempt,

here

the one who stumbled

is liable

for the damage to the second, because this is a case in which the second stumbled over the first only after some time,

when he had

the opportunity

to stand up

but did not stand up.

This is difficult: A person who causes damage is liable even in a case of unavoidable accident, as stated above [27a]. Granted, according to the Tosafot [29a, s.v. MiMishna; see there in the notes], one who stumbles is subject to a completely unavoidable accident, and one who causes damage in such an accident is exempt, as the Tosafot wrote [27b]; this is why the Rabbis exempted him, and the Tosafot in Bava Metzia [82b] likewise answered. But according to Ramban [Bava Metzia, there], who holds that a person who causes damage is liable in every circumstance, the difficulty remains: Here too, the Rabbis should agree that if the second potter was injured by the first one's body, the first is liable as a person who causes damage. "Nimukhei Yosef": "The first who stumbled — we do not distinguish between a place of a slope and not a place of a slope; in general." It follows that the one who stumbled on a straight road is liable by the law of a stumbler, and since our Mishna deals with a stumbler on a slope whose liability is not for the act of stumbling itself but for not having prevented the second's stumble. And behold wrote that since the harmed party stumbled into the first, it appears that the injurer did not do an act of damage by force but only indirectly, and he is not liable if he is coerced in his fall, and they did not say that a human wrongdoer is liable in coercion except where he inflicts damage by force. According to Rabbi Ch. [in the note to the Mishna] one should say that the stumbler in the public domain even though he is a human injurer, since he is in permission and the other was harmed by him, he is exempt by the law of two in the public domain who injure each other. And according to his words the reason of "he had to stand or to warn" causes him to be considered as not in a state of permission. According to the Rishonim [see note to the Mishna] who hold that one who had to stand is liable by the law of pit (bor), Rabbenu Peretz objected: why is the stumbler who acted negligently [according to the view that a stumbler is a wrongdoer] liable as a human wrongdoer, whereas one who did not stand in negligence is liable only by the law of a pit? He answered that to be liable as a human wrongdoer there must be culpability either at the time of the fall or at the time of the damage; therefore the stumbler who sinned at the time of the fall is judged as a human wrongdoer. But the one who had to stand did not sin at the time of the fall [for the time for being judged a stumbler had already passed, and now his liability is only for not having stood]. And also at the time they struck him he had done no act. In this manner Rabbeinu Peretz asked: Why is one who stumbled negligently [according to the opinion that one who stumbles is negligent] liable as a person who causes damage, while one who negligently failed to stand is liable only under the law of a pit? He answered that in order to hold someone liable as a person who causes damage, he must have acted negligently either at the time of the fall or at the time of the damage. Therefore, one who stumbled negligently at the time of the fall is treated as a person who causes damage. But the one who should have stood was not negligent at the time of the fall [since the period during which he was considered one who stumbled had already passed, and now his only liability is for failing to stand]. Moreover, when people stumbled over him, he performed no act. In a similar manner, "Be'emrei Moshe" [ ktav ] explained, that the one who had to stand and did not stand — it is not that he is less a wrongdoer than a human injurer, but the deficiency of the act [that he did not commit an immediate injurious act] is the cause that he is not liable as a human wrongdoer, and there may be cases where one who had to stand is liable as below [31b] in the law of the owner of a beam who stood. And by this Rabbenu Peretz's difficulty is resolved, and [29] explained that the statement that he should have stood but did not does not mean that he is less negligent than a person who causes damage. Rather, the absence of an act [the fact that he did not perform an act of damage] is what prevents liability under the law of a person who causes damage. It is possible that in a case where he should have stood, he would nevertheless be liable, as stated below [32a] concerning a person carrying a beam who stopped. This also resolves the question of "Chiddushei R' Shlomo" explained why the one who did not stand is not liable by the law of human wrongdoer, for a man is always a liable person; the explanation is that it is impossible to obligate for the lying down by the law of human wrongdoer, or because he did not sin, or because his strength did not cause the damage.

Rav Nahman bar Yitzhak said: You may even say

that this concerns a case in which

he did not have

the opportunity

to stand up; he should have warned

the person walking behind him not to stumble over him,

but he did not warn him.

The Sages agree that the first one who stumbled is liable for failing to warn.

And

if

Rabbi Yohanan said

that the first person’s liability must be for having been required to stand up but failing to do so, then in a case in which he could not stand,

since he did not have

the opportunity

to stand,

he also

did not have

an obligation

to warn,

because

he was preoccupied.

Rabbenu Peretz discussed below [in the law of the owner of a beam who stopped and the one behind him was damaged carrying a barrel] what is the ruling if he could not have warned, whether he is liable for the second's damages or not. He there sided that he is liable, for the primary cause of liability is not the lack of warning but the standing without warning. And this is an act of damage that obliges him by the law of a human injurer. It may be that precisely there, where he performed the act of standing, he is judged as a human wrongdoer. But here, since he did not sin by his fall and afterwards did not warn, he is exempt, and so it is explained there in his words. discusses below, concerning the case of a person carrying a beam who stopped and was injured by someone carrying a barrel behind him, the law regarding a mute person who could not warn. Is he liable for the damage suffered by the second person or not? He inclined to say that he is liable, because the essential basis of liability is not the failure to warn itself, but standing without warning. That is an act of damage that makes him liable as a person who causes damage. It is possible that only there, where he performed the act of stopping, is he treated as a person who causes damage. But here, since his fall was not negligent and he subsequently failed to warn, he is exempt. This is also apparent from his words there. "Yam shel Shlomo" scrutinized why the Gemara chose the phrase that he must warn only because he was occupied; perhaps according to Rabbi Yochanan there is no need to warn even when not occupied. He differed with Rav Nachman. He proved from here that the Gemara knew that the halakha is according to Rabbi Yochanan, and also the halakha is that one must warn, and therefore the Gemara added that Rabbi Yochanan concedes to the very obligation of warning, but that being occupied exempts him from warning. This is the source of the Rif and the Rambam who ruled like Rabbi Yochanan. analyzed why the Gemara stated that he must warn but is preoccupied. Perhaps, according to Rabbi Yohanan, he need not warn even when he is not preoccupied, and in this he disagrees with Rav Nahman. He proved from here that the Gemara knew that the halakha is in accordance with Rabbi Yohanan, and that the halakha is also that one must warn. Therefore, the Gemara added that Rabbi Yohanan agrees with regard to the very obligation to warn, but that being preoccupied exempts him from warning. This is the source for the Rif and Maimonides, who ruled in accordance with Rabbi Yohanan.

The Gemara brings a proof for the statement of Rav Nahman bar Yitzhak:

We learned:

A person carrying a beam and another person carrying a barrel were walking in the public domain. If

the owner of the beam

was walking

first and the owner of the barrel last,

and the owner of the barrel hastened his pace until he stumbled over the beam and

the barrel broke against the beam,

the owner of the beam

is exempt,

because the owner of the barrel injured himself.

But if the owner of the beam stopped

without previously informing the owner of the barrel, and as a result the barrel broke against the beam, the owner of the beam

is liable.

Is that not

apparently a case in which

the

owner of the beam

stopped

in order

to adjust the load on his shoulder,

to arrange his burden on his shoulder,

as this is his usual practice,

as it is customary for those carrying burdens to stop and arrange their loads,

and

even so

it teaches

that the owner of the beam

is liable.

"HaMeromei Sadeh" noted, from the end of the later Mishna "if the barrel-owner was first and the beam-owner last and the barrel-owner stopped, the owner of the beam is exempt." And if it is a stopping to adjust on the shoulder, why is the owner of the beam exempt, for that is the barrel-owner's manner in this, and the beam-owner should be careful? Indeed, Tosafot there explained that it is a case of a shilta. But according to those who differ with Rish Lakish they interpret even without a shilta; it would seem strange what their presumptive understanding was to interpret the Mishna as speaking of stopping to adjust on the shoulder. It is explained later [31b, and in She'elot Emor Kia] that at the end, when the barrel-owner stopped, the owner of the beam is exempt because it was for the barrel-owner to warn since he was not occupied, and see there at length. pointed out that at the end of the Mishna below it says: “If the person carrying the barrel was first and the person carrying the beam was last, and the person carrying the barrel stopped, the person carrying the beam is exempt.” If the case concerns stopping to adjust the load, why is the person carrying the beam exempt? That is the normal practice of the person carrying the barrel, and the person carrying the beam should take care. In fact, the Tosafot there [at the end of s.v. Tarvuyehu] explain that the beam was lying across the road. But according to those who hold that the dissenters from Reish Lakish explain the case even when the beam was not lying across the road, it is apparently puzzling why one would have thought that the Mishna was speaking of stopping to adjust the load. He explained [below, 32a, and in the Sheiltot, Emor 111] that in the final clause, when the person carrying the barrel stopped, the person carrying the beam is exempt because the person carrying the barrel should have warned him, since he was not distracted. See there for a fuller discussion.

It follows that although he was not negligent in the very act of stopping, he is obligated to prevent damage to the owner of the barrel, and if he caused damage he is liable. Necessarily, the reason for this is only

that he should have warned him,

and it is not possible to impose liability for the very act of stopping [as in the case of one who stumbled, who should have stood], since it is customary for those carrying beams to stop in order to adjust their loads.

The Gemara rejects this:

No,

the Mishna cannot prove the view of Rav Nahman bar Yitzhak. Actually, in a case in which he cannot stand but can only warn, he is exempt because he is preoccupied, in accordance with the view of Rabbi Yohanan.

The Mishna below is speaking of a case in which the owner of the beam deviated from the usual practice

by stopping to rest,

and it is not customary for those carrying burdens to stop to rest in the public domain. Therefore, if he stopped without warning, and the owner of the barrel stumbled over him and was injured, the owner of the beam is liable.

The Gemara infers that since the Mishna speaks only of one who stopped to rest, in which case the owner of the beam is liable, it follows:

But if he stopped

the owner of the beam

to adjust his load,

as is his usual practice,

what is the ruling?

He is exempt,

since the owner of the barrel must take care because the owner of the beam may stop to adjust his load.

If so, this is difficult:

Rather than teach

in the

latter clause

of the first clause of our Mishna: “If the owner of the beam was first and the owner of the barrel last, and the owner of the beam stopped, he is liable,”

and if he said to him

the owner of the beam

to the owner of the barrel, ‘Stop,’

the owner of the beam

is exempt,

because he warned him,

the tanna should have divided the case and taught the distinction in that very context,

saying the following: “The owner of the beam stopped and is liable; in what circumstances does this statement apply?

If the person carrying the beam stopped, he is liable;

When he stopped

to rest,

the owner of the beam

without permission to do so,

but

if

the owner of the beam

stopped

in order

to adjust his load, he is exempt.”

It is necessary to be precise why the distinction between amad la-katef and amad la-push is preferable—whether it applies to the more cautious or to the not-cautious. See Yam HaTalmud.

the Rosh He wondered what the proof is here: if he said to him "stand" he is exempt—did it occur to you that one might suppose that the owner of the barrel could break his barrel with a beam after he had been warned by the owner of the beam, and thereafter sue for the value of his barrel? Some of the later decisors explained that the warning is effective even when the owner of the barrel did not hear the warning because of his inattention; nevertheless, since he is obliged to be careful at least enough to hear when they warn him, the owner of the beam is exempt. And Hafnei Yehoshua He explained that in the following case (fol. 32a) the Gemara placed the Mishna there according to an expository connection to Kish, in a manner where the first blocked the whole breadth of the way as when a child [a cast-away corpse] and we found above (ch. 27b) that one who fills the public domain with barrels is permitted to break them by hand [see there in the note from which law it was permitted to break]; and if so, one might think that the owner of the barrel is not bound to heed the warning of the owner of the beam who blocks the whole breadth of the way, and just as in the case of barrels it was permitted to cause damage, so here it was permitted that the owner of the barrel be harmed and afterwards sue the owner of the beam for his damages. This teaches us that if he said to him "stand," he is exempt. And his words are problematic, for above there it is stated that if the breaker was harmed by his breaking he cannot sue the owner of the barrels; all the more so here, where he merely stops to the side—one cannot break intentionally and be freed. And likewise objected Beit Aharon. See in the responsa of See in the responsa of R.Y.D. who read in the Gemara: "This comes to teach us that when he stood to the shoulder it is as if one said to him 'stand' and you are exempt." According to his words there is a great novelty here that one does not need the utterance "stand" when he stood to the shoulder. And his words are explained in Tosafot that one can tell by the person whether his intention is to stop to the push or to the shoulder.

The

the

and

the

(as Rabbi Meir says [tractate 29a]), and therefore the first is liable for the damages that were caused by his vessels as one who digs a pit by negligence; if so,

And