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1) LEAVING DAMAGING ITEMS IN THE PUBLIC DOMAIN

(a) (Mishnah): Reuven poured water in the public domain, and Shimon was damaged by it - Reuven is liable;
(b) Reuven hid a thorn or glass, or made a fence of thorns, or his wall fell in the public domain, and people were damaged by it - Reuven is liable.
(c) (Gemara - Rav): Reuven is only liable if Shimon's clothing was dirtied by the water; but if Shimon got hurt when he fell, Reuven is exempt - the ground injured him, and Reuven does not own the ground.
(d) Question (Rav Huna): But the water mixes with the dirt, making mud - this mud is Reuven's!
(e) Answer (Rav): No, the case is that the water was totally absorbed and did not make mud.
(f) Question: Rav also explained the Mishnah (28A) this way - why do we need 2 Mishnayos teaching the same thing?
(g) Answer: The extra Mishnah teaches that he is liable not only in summer, but even in winter, when he is allowed to expel water to the public domain.

1. (Beraisa): All the cases where Chachamim allowed letting one's waste water run into the public domain, and to sweep out one's water-cave - this is only permitted in winter;
2. Even though it is permitted, if someone is damaged by it, the owner is liable.

(h) (Mishnah): One that hides a thorn ...
(i) (R. Yochanan): This is only if the fence of thorns protruded into the public domain; if it was within his property, he is exempt.

1. The reason he is exempt if the thorn was within his property, is as Rav Acha brei d'Rav Ika taught.
2. (Rav Acha brei d'Rav Ika): He is exempt because people do not normally scrape themselves on walls (the victim brought the damage on himself by acting abnormally).

(j) (Beraisa): Reuven hid thorns and glass in Shimon's wall; Shimon knocked down his wall, and the thorns and glass fell into the public domain and damaged - Reuven is liable.
(k) (R. Yochanan): This is only if the wall was prone to fall; if the wall was sturdy, Shimon is liable, Reuven is exempt.
(l) (Ravina): We may derive from this: If Reuven covers his pit with Shimon's Deli (bucket; Rashi explains - lid), and Shimon takes his Deli, Reuven is liable.
(m) Question: Obviously, we may derive this!
(n) Answer: By the wall, Shimon is not liable for not telling Reuven (since he did not know who hid things in his wall);

1. But by a pit, Shimon knows that Reuven relies on the Deli, one might have thought that Shimon must inform him when he takes it back - we hear, this is not so.

(o) (Beraisa): Early Chasidim used to bury their thorns and glass 3 Tefachim deep under their fields, so they should not be pulled up during plowing.

1. Rav Sheshes burned them; Rava threw them in the Diglas River.

(p) (Rav Yehudah): One who wants to be a Chasid should fulfill the laws of damages;

1. Version #1 (Rava): He should fulfill the matters in Ethics of the Fathers.
2. Version #2: Some say, he should fulfill the matters of blessings.

(a) (Mishnah): Reuven took out his straw and stubble to the public domain to make fertilizer. Shimon was damaged by it - Reuven is liable.
(b) Anyone that wants may take the straw and stubble;

1. R. Shimon ben Gamliel says, anyone that damages the public domain is liable for anyone that gets hurt; (anyone is allowed to take the damaging items - Tosfos says, this clause does not appear in the Mishnah).

(c) Reuven turned over dung in the public domain, and Shimon was injured by it - Reuven is liable.
(d) (Gemara) Suggestion: The Mishnah is not as R. Yehudah.

1. (Beraisa - R. Yehudah): At the time that people put out fertilizer, a man may put his fertilizer in the public domain for 30 days, so it should get trampled by people and animals;
2. Yehoshua made this a condition for inheriting Eretz Yisrael.

(e) Rejection: The Mishnah can even be as R. Yehudah - R. Yehudah admits, if one is damaged by it, the owner is liable.
(f) Question (Mishnah - R. Yehudah): (A grocer left his Chanukah lights burning outside his shop, and this set fire to a load of flax on a passing camel. The camel walked around, setting the whole building on fire.) The grocer is exempt, because he had permission to leave the lights burning.

1. Suggestion: Because he had permission of Beis Din, he is exempt!

(g) Answer: No, because it is a Mitzvah he is exempt.

1. (Beraisa - R. Yehudah) If he left Chanukah lights burning, he is exempt, because he had permission to perform the Mitzvah.

(h) The following Beraisa shows that our Mishnah is not as R. Yehudah.

1. (Beraisa): All cases where one is permitted to damage the public domain, if someone was hurt, the damager is liable; R. Yehudah says, he is exempt.

(i) Rejection #1 (Rav Nachman): The case of our Mishnah is not at the time when people (normally, and are permitted to) leave fertilizer in the public domain - it is even as R. Yehudah.

(j) Rejection #2 (Rav Ashi): The Mishnah speaks of leaving straw and stubble in the public domain; these are slippery. R. Yehudah only permits leaving fertilizer which is not slippery.

(a) (Mishnah): Anyone that wants may take them.
(b) (Rav): The original owner doesn't get anything.
(c) (Ze'iri): The original owner gets back the original value; the one who takes them keeps the value they increased in the public domain.

1. Rav holds that we fine the original owner to lose the original value, so he will not put them out, hoping they will increase in value; Ze'iri says, we do not make such a fine.

(d) (Mishnah): Reuven turned over dung in the public domain, and Shimon was injured by it - Reuven is liable.
(e) Question (against Rav): This final clause of the Mishnah does not say 'Anyone that wants may take them'. (This is as Ze'iri, who says that the original owner only loses the increased value - dung does not increase in value.)
(f) Answer #1 (on behalf of Rav): This was taught in the beginning of the Mishnah, it also applies to the end of the Mishnah, even though it was not repeated.

1. Question: But a Beraisa explains, one may not take (the dung), that is stealing!
2. Answer: No - the Beraisa means, if Levi took straw or dung from the public domain (which was permitted to do), it is forbidden to take from Levi.
3. Objection: But a Beraisa teaches differently!
4. (Beraisa): Reuven took out his straw and stubble to the public domain to make fertilizer. Shimon was damaged by it - Reuven is liable.

i. Anyone that wants may take the straw and stubble; this is not considered stealing.

5. Reuven turned over dung in the public domain, and Shimon was injured by it - Reuven is liable.

i. It is forbidden for someone else to take them.

(g) Answer #2 (Rav Nachman bar Yitzchak): Rav said that to discourage people from leaving things out in the public domain to improve, we make a fine, and even the principle may be taken; dung does not improve, so Chachamim did not make any fine!
(h) Question: According to Rav, who says that we fine the original owner to lose the original value, so he will not put them out, hoping they will increase in value - does the fine apply immediately, or only after they increase?
(i) Answer: We asked a question on Rav from the case of dung, which has no increase - it must be, Rav says that the fine applies before there is any increase.
(j) Rejection: But the questioner did not know Rav Nachman's answer, that the fine only applies where the original owner hoped to profit. If he knew this, he could not ask at all!
(k) Suggestion: Rav and Ze'iri argue as the following Tana'im.

1. (Beraisa - R. Meir): A loan document which specifies that interest will be charged - we fine the lender, and he may not collect even the principle;
2. Chachamim say, he collects the principle, not the interest.
3. Suggestion: Rav holds as R. Meir, and Ze'iri as Chachamim.

(l) Rejection #1: Rav can hold even as Chachamim.

1. Chachamim only permit collecting the principle, since the principle is permitted; by straw, the straw itself damages.

(m) Rejection #2: Ze'iri can hold even as R. Meir.

1. R. Meir only fines the principle in that case, for the very writing of the document is a transgression; by straw, it is not certain that any damage will come.

(n) Suggestion: Rav and Ze'iri argue as the following Tana'im.

1. (Beraisa): Reuven took out his straw and stubble to the public domain to make fertilizer. Shimon was damaged by it - Reuven is liable;

i. Anyone that takes the straw and stubble acquires them; this is forbidden, it is theft.

2. R. Shimon ben Gamliel says, anyone that damages the public domain is liable for anyone that gets hurt;

i. Anyone that takes the damaging items acquires them; it is permitted to take them.

3. Question: The Beraisa contradicts itself!

i. It says, anyone that takes the straw and stubble acquires them - then it says, this is forbidden, it is theft!

4. Answer: It must mean, anyone that takes the increased value acquires it; the principle may not be taken, that is theft;

i. R. Shimon ben Gamliel argues, and says that even the principle may be taken.

(o) Rejection: Granted, Ze'iri can only hold as Chachamim; but all the Tana'im could agree to Rav.

1. All agree that we fine the principle on account of the (anticipated) profit; they argue whether we tell people (who ask) that this is the law.

i. (Rav Huna, citing Rav): This is the law, but we do not tell people that it is the law.
ii. (Rav Ada bar Ahavah): This is the law, and we tell people so.
iii. Question: But a man left peeled barley in the public domain, and Rav Huna declared it Hefker; a man left out date refuse, and Rav Ada bar Ahavah declared it Hefker!
iv. We understand Rav Ada bar Ahavah - he acted as his teaching.
v. Suggestion: Rav Huna's action contradicts his own teaching - perhaps he retracted?
vi. Rejection: No - the case he ruled in, the man was warned to remove the barley.