We are beginning page 28b of Bava Kamma, nine lines from the bottom. Let us return to the Mishnah, because today’s discussion will be extensive.
The Mishnah discussed a person who broke his jug in the public domain, or whose jug broke in the public domain, and the water or shards caused someone else to slip or become injured. The Mishnah states a straightforward law: if a person’s jug breaks, or if his shards are lying in the public domain, and someone slips on the water or is injured by the shards, the owner is liable.
Rabbi Yehudah then says something different: if the person intended to place the jug or the shards there, he is exempt. The Gemara asks what Rabbi Yehudah means by “intended.” Suppose he was carrying the jug on his shoulder and intentionally lowered it into the public domain. In that case, he intended to place it there.
Abaye infers that since Rabbi Yehudah requires intention, Rabbi Meir, the first anonymous opinion in the Mishnah, must hold that a person is liable even when the jug fell accidentally. It could simply have slipped from his shoulder. Is that really so? What could the person have done? It was an accident. Rashi explains that the jug slipped from him, which is clearly an accident. Why, then, would Rabbi Meir make him liable in such a case?
Rav responds that Rabbi Meir does indeed make him liable even if the jug was still in his hand and fell from there. The Gemara asks: why should he be liable? It was an accident, and the principle is that an accident exempts a person from liability.
We know this from the case of a young woman who was betrothed and then raped. The Torah says that she is not punished; only the perpetrator is punished. Why? Because she was forced. The Torah does not hold a person liable for what happened entirely against her will. Why, then, should this person be liable when his jug fell accidentally and beyond his control?
The Gemara answers that perhaps the word “liable” in this context does not mean liable to pay damages. Perhaps it means liable in the sense of being responsible for the danger, but not liable for the full penalty that would apply in another context. The Gemara brings a Baraita to clarify the matter.
The Baraita discusses a person whose jug broke, or whose animal fell, and whose property caused damage. Rabbi Meir says that he is liable, while Rabbi Yehudah says that he is exempt when the event occurred accidentally. The Baraita also discusses a person who placed rocks, a knife, or a load on a roof, and an ordinary wind caused them to fall and cause damage. In that case, the person is liable because he should have anticipated an ordinary wind. However, if an unusual wind caused the object to fall, Rabbi Yehudah exempts him, because he was not required to anticipate such an event.
We must therefore return to the Mishnah. How can we explain Rabbi Yehudah’s statement that the person is liable only when he intended to place the jug there? That wording seems to imply that if he did not intend to place it there, he is exempt. Yet the Baraita appears to say that Rabbi Meir holds him liable even when it fell accidentally.
Abaye answers that there are actually two cases embedded in the Mishnah. One case concerns the moment the jug fell. The second concerns what happened after it fell, when the person had time to remove it but failed to do so.
In the first case, the person was carrying the jug on his shoulder, attempted to remove it, and it slipped from him. The question is whether an accidental stumble is considered negligence. Rabbi Yehudah says that it is not negligence, and therefore the person is exempt. The disagreement in that case concerns whether a person who stumbles is considered negligent or not.
The second case begins after the object has already fallen to the ground. At that point, the person had time to pick it up, but he did not. The dispute in that case concerns abandoned property that causes damage in the public domain. One opinion holds that when a person abandons an object that causes damage, he is liable. The other opinion holds that he is exempt.
Rashi explains that the second case involves a person who presumably abandoned the object after it fell. Rabbi Meir holds that a person is liable for damage caused by abandoned property in the public domain. His source is the pit discussed by the Torah: when a person creates a dangerous obstruction in the public domain, he is liable. Rabbi Meir understands that an abandoned object in the public domain has the status of such a pit.
Rabbi Yehudah, however, holds that the pit discussed by the Torah is specifically a pit that a person owns. According to him, the Torah made a person liable for a pit that remains in his possession, but not for an object that he abandoned entirely. That is the basis of the dispute regarding the object that remained on the ground after the person had time to remove it.
According to this explanation, the Mishnah contains two separate disputes. The first concerns the object while it is falling: whether a person who stumbles is considered negligent. The second concerns the object after it has fallen: whether abandoning an object that causes damage makes the person liable.
When Rabbi Yehudah says that a person is liable if he intended to break the jug, “intended” means that he intended to break it as he lowered it from his shoulder. If he intended to break it, then this is no longer an accidental stumble. His property caused damage intentionally, and he is liable. If he was merely trying to remove it from his shoulder and it slipped, then he is exempt because an accidental stumble is not considered negligence according to Rabbi Yehudah.
Once the jug has fallen, however, the discussion changes. At that point, the issue is no longer whether the person intended to break it. The issue is whether he had time to remove it and failed to do so. If he had time to remove it, the dispute is whether abandoning the object in the public domain makes him liable.
A question was raised: perhaps the word “stumbled” in the Mishnah refers to the person who was injured, rather than to the person carrying the jug. That cannot be correct. The person who stumbled in the Mishnah is the one carrying the object. He was walking, carrying the jug on his shoulder, and attempted to remove it. It slipped and fell. The other person then encountered the water or shards and was injured.
The same two-part explanation is needed to understand the Baraita, which discusses both a jug and an animal. The case of the jug is readily understood: either it fell while the person was carrying it, or it fell and remained on the ground while he failed to remove it.
The case of the animal is more difficult. If an animal was simply walking and tripped on a stone, what could its owner have done? Why should the owner be liable for an accident involving the animal?
The Gemara answers that the animal was walking through water that covered the road, so the owner could not see the bottom. The owner was negligent for bringing the animal into a place where it could trip. The Gemara then asks what the law would be if there had been no other road and the owner was forced to take the animal through the water. In that case, the owner would be considered forced and would be exempt.
The Gemara gives another possible interpretation. The owner himself was walking on dry land, and the animal tripped over him. The owner fell on the dry road, and the animal then stumbled over him. In this case, too, the Baraita can contain two situations: either the animal itself fell, or it tripped over the owner after the owner had fallen.
Thus, the case of the animal can also be understood in two ways. The animal may have fallen before the owner had an opportunity to prevent the damage, or it may have tripped over the owner after the owner had fallen. The same principles apply to both the Mishnah and the Baraita.
Let us return to the wording of the Mishnah. Rabbi Yehudah says that if the person intended to break the jug, he is liable, but if he did not intend to break it, he is exempt. How does that fit the explanation that the jug had already fallen to the ground? If it had already fallen, what does it mean that he intended to break it? He was no longer in the process of breaking it.
Rav Yosef explains that “intended” means that he intended to hold on to the jug after it fell. Rav Ashi explains that “intended” means that he intended to hold on to the shards. If he intended to retain control of them, he is liable. If he did not intend to hold on to them, he is exempt.
In other words, “intended” does not necessarily refer to the intention to break the jug. It may refer to the person’s intention to maintain possession of the jug or the shards after they fell. If he intended to retain them, he remains responsible. If he did not intend to retain them, he is exempt according to Rabbi Yehudah.
That is one way to understand the Mishnah. Another approach is that the Mishnah contains two separate disputes: one concerning whether a person who stumbles is negligent, and another concerning whether a person is liable for damage caused by an object that he abandoned after it fell.
In the first case, a person is carrying a jug on his shoulder, stumbles, and the jug falls. He has not yet had an opportunity to pick it up or prevent it from causing damage. Rabbi Yehudah says that he is exempt because a person who stumbles is not considered negligent. Rabbi Meir says that even a person who stumbles is liable.
The second dispute concerns what happens after the jug has fallen. The person now has time to pick it up, but he leaves it where it is. Rabbi Meir says that abandoning the object does not free him from liability. It is comparable to creating a pit in the public domain. Rabbi Yehudah says that a person is exempt because he abandoned the object and no longer owns it.
This also explains why the Baraita discusses two cases, the case of the jug and the case of the animal. The two principles can be applied to both. The difficulty with the animal was that it is not obvious how the owner could be blamed if the animal merely stumbled. The Gemara therefore explains that the animal either stumbled in a place where the owner should not have taken it, or it stumbled over the owner himself after he had fallen.
The Gemara then presents the position of Rabbi Elazar, who says that there is only one dispute here. The dispute concerns the moment the object fell. The question is whether a person who stumbles is considered negligent. Once the object has fallen and the person had time to remove it, everyone agrees that the person is liable.
The Gemara challenges this explanation. If the only dispute concerns the moment of falling, what does the phrase “after it fell” mean? Moreover, the Baraita explicitly says that Rabbi Meir makes a person liable when the jug broke and remained on the ground, and the Sages exempt him in that same situation. That clearly sounds like a dispute concerning what happened after the fall.
The Gemara answers that even according to Rabbi Elazar, the Baraita is teaching us that the dispute applies at the moment of falling as well. The Baraita’s wording may sound as though it is discussing what happened after the object fell, but its actual purpose is to teach the same dispute identified by Abaye: whether the person who stumbled is considered negligent.
According to this explanation, the wording of the Baraita is not a precise indication that the dispute concerns only the aftermath of the fall. The Mishnah, however, can be read as containing two cases, and that is the basis of Abaye’s interpretation.
Rabbi Yochanan then states that the dispute applies only after the fall. While the object is falling, everyone agrees that the person is exempt if the event was accidental. The dispute begins only after the object has fallen and the person had an opportunity to remove it.
Rabbi Yochanan’s position must be carefully analyzed. The Mishnah seems to indicate that Rabbi Meir makes the person liable when the object fell accidentally. If so, Rabbi Meir must be discussing the situation in which the person had an opportunity to remove it afterward. Otherwise, how could Rabbi Meir make him liable for an accident?
Accordingly, Rabbi Yochanan explains that Rabbi Meir is liable only when the object fell in a manner that involved negligence. The anonymous opinion in the Mishnah is not discussing the moment of the fall itself. It is discussing the person’s failure to remove the object afterward.
Rabbi Yochanan’s practical conclusion is that the two disputes are connected. If one holds that a person who stumbles is negligent, then after the object falls, he will certainly be liable once he fails to remove it. If one holds that a person who stumbles is not negligent, then the object’s status after the fall depends on the separate dispute concerning abandoned property.
The distinction is as follows. According to the view that a person who stumbles is negligent, the person becomes a negligent party as soon as the object falls. Once the object is lying in the public domain and he does not remove it, he is liable for damage. According to the view that a person who stumbles is not negligent, the initial fall is an accident. The question then becomes whether abandoning the object after the fall creates liability.
Thus, according to Rabbi Yochanan, there are not necessarily two entirely independent disputes. One dispute determines whether the person who stumbled is considered negligent, and the outcome after the fall follows from that determination together with the rules of abandoned property.
The Gemara then discusses the case of a person who abandoned a dangerous object in the public domain. Two rabbis, Rabbi Yochanan and Rabbi Elazar, gave different rulings. One said that the person is liable, and the other said that he is exempt. Since we do not initially know which rabbi said which ruling, the Gemara analyzes their positions by comparing them with the opinions of Rabbi Meir and the Sages in the Baraita.
The one who says that the person is liable must follow Rabbi Meir, who holds that abandoning property that causes damage in the public domain creates liability. The one who says that the person is exempt must follow the Sages, who exempt a person in that situation.
The Gemara then asks whether Rabbi Meir’s position is itself subject to dispute. If Rabbi Meir holds that a person is liable when he abandons dangerous property after an accident, then surely he will hold that a person is liable when he abandons property after an ordinary negligent event. According to Rabbi Meir, there is no distinction between these cases: abandoning the object in the public domain creates liability.
Therefore, the disagreement between the two rabbis must concern the extent of the Sages’ exemption. One opinion may understand the Sages as exempting a person only when the object came to rest in the public domain through an accident. In an ordinary case, even the Sages would impose liability. The other opinion may understand the Sages as exempting a person whenever he abandons the object, whether the initial event was accidental or negligent.
The Gemara attempts to identify the position of each rabbi through another teaching. It is stated in the name of Rabbi Ishmael that there are two things that are not initially in a person’s possession, but the Torah places them in his possession in order to make him liable. One is leavened food after midday on the day before Passover, and the other is a pit in the public domain.
Leavened food after midday illustrates the principle. After the prohibited time begins, a person may no longer derive benefit from the leavened food. In that sense, it is not fully in his possession. Nevertheless, the Torah treats it as though it remains in his possession and makes him responsible for removing it.
The same principle applies to a pit in the public domain. A person may no longer regard himself as the owner of the pit in the ordinary sense, especially if the pit is located in a public area. Nevertheless, the Torah treats the pit as being in his possession for purposes of liability.
This raises a broader question about ownership. What does it mean to own something? One expression of ownership is the ability to use the item. If a person cannot use the item at all, perhaps it is not truly considered his property. Yet the Torah can still impose a special form of ownership for purposes of liability. It places the item back in his possession so that he will be responsible for the damage it causes.
Ownership can also be expressed through the ability to sell an item. For example, a person may own shares in a company even though he cannot walk into the company’s factory and take its products. His ownership is expressed through his legal rights to the shares and the ability to sell them. Nevertheless, in the case of leavened food after the prohibited time, the Torah removes the ordinary ability to use or benefit from the item. It then creates a special legal status in order to make the person liable for failing to remove it.
The same is true of a pit. A person may have no practical use for the pit and may even have abandoned it, but the Torah treats it as being in his possession for purposes of liability. That is why the teaching of Rabbi Ishmael is relevant to the dispute: it indicates that a person can be liable for an object that is not in his possession in the ordinary sense.
The Gemara then discusses a person who turned over waste in the public domain, and another person was injured by it. One opinion says that the person is liable if he intended to acquire the waste as his own. Another opinion says that he is exempt if he did not intend to acquire it.
The Gemara initially understands this as a dispute regarding abandoned property that causes damage. If the person intended to acquire the waste, he becomes responsible for it. If he did not intend to acquire it, it remains the property of the original owner, or it is considered ownerless, and he is not liable.
The Gemara rejects that explanation by saying that the case may involve waste that the person merely moved and then returned to precisely the same place. Since he did not create a new hazard or change its location, he may not be liable. He did not acquire it, and he did not leave it in a different place.
This is compared to a person who finds an uncovered pit, covers it, and then later uncovers it again. He did not create the original pit. The pit was already there, and he merely restored it to its previous condition. In such a case, he may be exempt because his actions did not create a new hazard.
The Gemara distinguishes that case from one in which the person lifted the waste out of its original location and then placed it down elsewhere. Once he removed it, the original act of the first person was no longer the direct cause of the danger. When he placed it down again, he created a new hazard, and he may therefore be liable.
The Gemara then discusses the amount by which a person must lift an object in order to acquire it. If he lifted it less than three handbreadths, he may not yet have acquired it, because it remains connected to the ground. If he then places it down again, he may have done nothing legally significant. The object was not acquired by him, and he did not create a new object or a new legal hazard.
However, if he intended to acquire it, his intention may have significance even though he lifted it less than three handbreadths. The Gemara asks why the case was formulated in this unusual way. If the person lifted the object more than three handbreadths, he would acquire it automatically, and there would be no need to discuss his intention.
The answer is that the wording of the case indicates that he lifted it only a small amount. The Gemara is therefore examining whether intention can create acquisition even when the physical act was insufficient to establish acquisition on its own. If he lifted it more than three handbreadths, there would be no dispute: he would have acquired it, and placing it down again would create a new hazard.
Thus, when the object was lifted less than three handbreadths and then returned to its original place, the person may be exempt because he did not acquire it and did not alter the existing hazard. If he lifted it sufficiently to acquire it, or if he moved it to a new location, he would be liable because he created a new hazard.
We now return to the Mishnah’s discussion of a wall or fence that fell into the public domain. The case concerns a person who placed thorns or glass in an area where they could cause damage, or who constructed a fence from thorns, and the fence or its material fell into the public domain.
The reason for the liability is straightforward. The wall was not simply a wall that was destined to collapse and that the owner neglected to repair. Rather, its thorns or other dangerous parts protruded into the public domain, where they had no right to be. The person placed a dangerous object in an area used by the public, and someone was injured by it.
The Gemara discusses a case in which the owner narrowed his own property and allowed people to walk through a strip of land adjacent to the public domain. He made that area available for public use, but he did not necessarily abandon ownership of the pit or dangerous object located there.
The Gemara asks why the person is exempt in such a case. If the dangerous object is considered a pit in the public domain, then the ordinary rule would seem to make him liable, even if he had abandoned the area itself. The Gemara answers that the exemption is not necessarily because an abandoned pit in the public domain is exempt. Rather, it may be because the particular injury occurred in an unusual manner.
People do not normally walk directly against a wall. If a person went unusually close to the wall, rubbed against it, and was injured by thorns protruding from it, the owner may be exempt because the injured person did not encounter the danger in the ordinary manner. The exemption is therefore based on the unusual conduct of the injured person, not necessarily on the status of the owner’s property.
According to this explanation, if people ordinarily walked in that place and were likely to come into contact with the wall, the owner would be liable. The fact that he had allowed the public to use the area would not remove his responsibility for a dangerous object that remained under his control.
This raises a question regarding Rabbi Yochanan’s position. Does Rabbi Yochanan hold that a pit in the public domain creates liability even when the person abandoned the pit, or does he hold that abandoning the pit makes the person exempt? One possibility is that Rabbi Yochanan’s original statement concerned a pit in the private domain, not a pit in the public domain.
In a private domain, a person may abandon the area but retain responsibility for the pit itself. In a public domain, however, the legal status may be different. The question is whether the person abandoned only the surrounding property or also abandoned the pit that caused the damage.
The Gemara then challenges the idea that a pit in the public domain is exempt merely because it was abandoned. The Mishnah states that if a person’s pit is located in the public domain and an animal falls into it and dies, the owner of the pit is liable. This is an anonymous Mishnah, and Rabbi Yochanan generally follows an anonymous Mishnah.
The Gemara therefore reverses the original attribution. Perhaps Rabbi Yochanan is the one who says that a person is liable for a pit in the public domain, while Rabbi Elazar is the one who says that he is exempt. The statement that a pit in the public domain is placed in a person’s possession by the Torah may then have been said in the name of Rabbi Yochanan’s teacher, Rabbi Ishmael, rather than expressing Rabbi Yochanan’s own position.
The final conclusion is that Rabbi Elazar and Rabbi Yochanan disagree about which type of pit the Torah made a person responsible for. Rabbi Yochanan holds that even a pit in the public domain can create liability. Rabbi Elazar holds that the Torah’s liability applies specifically to a pit in a person’s own domain.
When Rabbi Yochanan cited the principle that the Torah places a pit in a person’s possession in order to make him liable, that statement was attributed to his teacher, Rabbi Ishmael. It does not necessarily represent Rabbi Yochanan’s own position. The discussion therefore ends with a dispute between Rabbi Yochanan and Rabbi Elazar concerning whether liability for a pit extends to the public domain or is limited to a person’s private domain.