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Bava Kama, 81

1) PAYING FOR DAMAGE THAT ONE WAS PERMITTED TO DO

OPINIONS: One of the enactments made by Yehoshua as a condition for taking possession of the land of Eretz Yisrael was that the owner of a vineyard must allow a person who became lost in his vineyard to cut down branches in order to find his way out.

The Gemara does not mention, though, whether the enactment of Yehoshua merely permits the person to cut the branches in the first place, but he is nevertheless required to pay for the damage afterward, or whether the enactment completely absolves the person of any liability to the owner of the vineyard.

There are various opinions among the Rishonim.

(a) The RA'AVAD cited by the Shitah Mekubetzes later (117b, DH u'Matzil Atzmo) writes that he certainly has to pay for the branches that he cut. He proves this from the Halachah that a person who was being pursued by someone trying to kill him is *obligated* to pay for dishes that he broke while he was fleeing, with the exception of the dishes of the Rodef. The reason is because "he does not have the right to save himself with the money of his friend." Even though he is in danger, since the danger does not come from the owner of the dishes that he broke, he is obligated to pay for them. Similarly, one who becomes lost in his friend's vineyard is obligated to pay for the damages that he does to the branches, even though he has permission to break the branches in order to find his way out, because it is his fault, and not the fault of the owner of the vineyard, that he became lost. This is also the view of the ME'IRI.

(b) The RASHBA (81b) writes that if the Ra'avad had not ruled that the person must pay for the damage to the branches, he would have said that all of the enactments made by Yehoshua include an exemption from payment, for that was the condition with which Yehoshua distributed the land. The Rashba proves this from the very fact that Yehoshua made an enactment permitting the person to cut branches in order to find his way out of the vineyard; if the person has to pay for the damage that he does, then there would be no need for an enactment of Yehoshua, since it is obvious that when a person saves himself at the expense of the property of someone else, he must reimburse the owner!

The Ra'avad himself asks this question on his opinion, and he answers that if not for the enactment of Yehoshua, it would not have been permitted for the lost person to cut the branches without the consent of the owner. Yehoshua enacted that he *may* cut the branches without the consent of the owner, as long as he pays afterward.

The Rashba gives further proof for his view that the person should not be required to pay for the branches that he cut from the Gemara later (end of 81b). The Gemara lists the forms of damage that a person is permitted to do in order to save his own property, on condition that he pay for the damage afterward. (For example, he is allowed to cut the branch of his friend's bush so that his own bees do not migrate and establish their hives there, as long as he pays his friend for the branch. In addition, a person must spill out his wine in order to use the barrels to save his friend's honey, and the owner of the honey is obligated to pay for the wine.) If one must pay for the branches that he cuts when trying to find his way out of a vineyard, then this case should have been mentioned in that list as well!

The KOVETZ SHI'URIM (#91) questions the Rashba's opinion from the Gemara later (end of 81b). The Gemara asks that there are other enactments that were made for the public's benefit. It cites the Beraisa of Rebbi Yishmael (Beno Shel Rebbi Yochanan ben Berokah), who says that one of the enactments was that a person may cut the branch of his friend's bush so that his own bees do not migrate and establish their hives there, as long as he pays his friend for the branch. According to the Rashba, though, who asserts that all of the ten enactments listed in the earlier Beraisa include an exemption from payment, the Gemara should have simply answered that this enactment (in the Beraisa of Rebbi Yishmael) is not listed in the first Beraisa because it involves payment. He leaves this question unanswered.

QUESTION: One of the enactments made by Yehoshua as a condition for taking possession of the land of Eretz Yisrael was that the owner of a field must permit others to pick grass from his field, except from a field of Tiltan (fenugreek), since the growth of the grass is beneficial to the Tiltan. The Gemara questions this from a Mishnah in Kil'ayim (2:5) which says that if types of grass and Tiltan grew together, one is not obligated to uproot it (to avoid the Isur of Kil'ayim), because the grass is *not* beneficial to the growth of the Tiltan.

The Gemara gives two answers. In its second answer, it says that the Mishnah in Kil'ayim is referring to when the Tiltan was planted for the consumption of humans, in which case the grasses are detrimental to it. The enactment of Yehoshua was made for Tiltan that was planted for the consumption of animals, and thus it is beneficial to have the grasses growing together with the Tiltan.

The Gemara asks, "How do we know [for whom the Tiltan was planted]?" It answers that when planted for humans, it is planted in organized rows.

RASHI (DH u'Mena Yad'inan) says that the Gemara's question is how do we know that a given field of Tiltan was planted for humans, such that one may pick the grasses there because of the enactment of Yehoshua.

Why does Rashi explain that the Gemara's question is only how we know that a field was planted for humans? Why does he not explain that the Gemara's question is how do we know that a field was planted for animals?

ANSWERS:

(a) The MAHARSHA (Mahadura Basra, DH Rashi) explains that Rashi did not explain that the Gemara is asking how we know that a field was planted for animals, because we assume that any field of Tiltan was planted for animals unless there are indications otherwise. Out of doubt, one must assume that the field was planted for animals, and it is Asur for one to pick the grasses there. Yehoshua's enactment was that one *not* pick grasses from someone else's field when there is a *doubt* that perhaps the field was planted for animals. Yehoshua's enactment permits picking the grasses only when one is certain that the field was planted for humans. The Gemara's question, therefore, is only with regard to Yehoshua's enactment permitted one to pick grasses from a field planted for humans; the Gemara is asking how can one know that a field was planted for humans such that one may pick the grasses from the field.

The problem remains, however, that the Beraisa does not say that if the field was planted for humans, then it is permitted, because of Yehoshua's enactment, to pick grasses from it. The Beraisa says, in general terms, that one may pick grasses from a field "except from a field of Tiltan," without specifying what type of field is prohibited. Perhaps the Beraisa means that Yehoshua's enactment prohibits picking grasses from a field of Tiltan whenever there is a doubt whether it was planted for animals or for humans, and only when it is known for certain that the field was planted for humans is it permitted. What, then, is the Gemara asking, according to Rashi, when it says "how do we know -- in a case of doubt -- that the field was planted for humans, such that it is permitted to pick grasses from it?" Perhaps indeed it is Asur until it is absolutely clear that it was planted for humans!

(b) Because of this problem, the Maharsha suggests a different explanation for the Gemara's question. The Gemara is not asking a question on our Beraisa (that discusses the enactments of Yehoshua). Rather, it is asking a question on the Mishnah in Kil'ayim: Why does the Mishnah not require a person to uproot the Tiltan growing together with other grasses when the Tiltan was planted for the use of humans -- for "how do we know" that it was planted for humans? People who see the field will assume that it was planted for animals and will think that the owner is transgressing the Isur of Kil'ayim! It is because of this suspicion that will be aroused among people that we should prohibit keeping the Tiltan and the grasses together in the field, even when the owner really did plant it for human use. This is the Gemara's question.

(c) The PNEI YEHOSHUA answers the question of the Maharsha on Rashi in a different manner. He explains that, indeed, the words, "How do we know," are not the words of a question. Rather, they are the continuation of the words of Rav Papa. Rav Papa is teaching that there is a Heter to pick grasses even in a field of Tiltan, in a situation where it is known for certain that the Tiltan was planted for the use of humans -- and that is when the Tiltan is planted in organized rows. (I. Alshich)

81b

QUESTION: One of the ten enactments made by Yehoshua was that anyone may fish in the bodies of water in Eretz Yisrael, as long as he does not spread out a "Kela" (or "Keli'ah"). This refers to setting up reeds in an area in the water in order to make a fence there with which to snare fish, since doing so would disrupt the movement of other boats (RASHI; see Background to the Daf).

The Gemara quotes a Beraisa which states that "originally, the tribes stipulated with each other that no one shall spread a 'Keli'ah,' but that they may fish with nets and traps."

If the tribes initially made this condition among themselves, then why did Yehoshua have to enact it?

ANSWERS:

(a) The YAM SHEL SHLOMO (in "Eser Takanos Yehoshua," Takanah 6) answers that Yehoshua only enacted that it is permitted for anyone to cast a hook, or net, to fish, and that it is only prohibited to fish with a "Kela." The owner of the body of water, on the other hand, is permitted to fish even with a "Kela" (this is not like the view of Tosfos, who says that the owner is also not allowed to fish with a "Kela"). Afterward, the tribes agreed among themselves that even the owner cannot fish with a "Kela," in order not to prevent the boats of others from passing. However, this created an imbalance in the rights of the owner, since all other people had the same fishing rights in the owner's body of water as the owner! Therefore, the tribes also enacted that other people are *only* permitted to fish with a hook, and *not* with nets, while the owner may fish with nets.

(b) The TORAS CHAIM answers that when this Beraisa mentions the agreement that the tribes made among themselves "originally," it means that they *added* to Yehoshua's original enactment, when they were G-d-fearing and upright. They "stipulated with each other" means that the owners of the bodies of water agreed that no one would spread a "Kela," but that they may fish with nets. Later, though, when the tribes became corrupt and they became parsimonious, the practice reverted back to the enactment of Yehoshua which gave permission to everyone to fish only with hooks. (According to this approach, too, when the earlier Beraisa mentions that Yehoshua enacted that they may fish with hooks (and with nets), as long as they do not spread a "Kela," it is referring only to *others* not spreading a "Kela," but the owners may spread a "Kela.")

(c) The PNEI YEHOSHUA writes that when the earlier Beraisa says that Yehoshua enacted that anyone may fish in the bodies of water in Eretz Yisrael, "as long as he does not spread out a 'Kela'," this latter part of the enactment was *not* part of Yehoshua's enactment, but was the tribes' own agreement among themselves. Yehoshua enacted only that every person has the right to fish with hooks. The Beraisa adds, "as long as he does not spread out a 'Kela'," just to relate the Halachah while the Beraisa lists the initial enactment. This explanation is consistent with the view of Tosfos who says that the injunction against spreading a "Kela" applies to the owners as well.

(See also MAHARSHA in Mahadura Basra.)