Bava Kamma - Daf 29
- Machlokes בשעת נפילה, if נתקל פושע
In the Mishnah on Daf 28a, the Tanna Kamma said that if one’s jug broke in רשות הרבים and damaged someone, the owner is liable. Rebbe Yehudah said: במתכוין חייב – where he had intent, he is liable, but not without intent. In analyzing this statement, a Baraisa is quoted which says that if one’s jug broke and he did not remove it, or his camel fell and he did not stand it up, Rebbe Meir says he is liable for its damages, and the Chachomim say he is not required to pay. Abaye ultimately explains: בתרתי פליגי – They argue about two cases. פליגי בשעת נפילה – They argue about damages occurring at the time of the fall, before the owner could clear the obstacle, ופליגי לאחר נפילה – and they argue about damages occurring after the time of the fall, after he could have removed it. The argument about the time of the fall is that the Tanna Kamma (Rebbe Meir) holds: נתקל פושע הוא – one who stumbles is negligent, and he is liable for damages resulting from this negligence. Rebbe Yehudah holds: נתקל לאו פושע הוא – one who stumbles is not negligent and is exempt from such damages. Only “where he had intent,” i.e., he broke his jug intentionally, is he liable.
- Machlokes לאחר נפילה, if מפקיר נזקיו is liable
Abaye then explains that the machlokes about damages “after the fall” is where the owner was mafkir his broken jug and its contents. The Tanna Kamma (Rebbe Meir) holds: מפקיר נזקיו חייב – one who is mafkir his hazardous items is still liable for the damage they cause, and Rebbe Yehudah holds he is not liable. Rashi explains that this question hinges on whether the bor discussed by the Torah refers to one which is ownerless (and still his responsibility), or only one which is owned. Later, Rebbe Yochanan says: לאחר נפילה מחלוקת – the argument concerns damages after the fall, and the Gemara ultimately explains that he agrees that they argue about שעת נפילה. He means to say that their second argument is specifically about being mafkir obstacles after a “fall,” which the Rabbonon (Rebbe Yehudah) hold is not his fault. If one negligently left an obstacle in רשות הרבים and was mafkir it, they agree he is liable.
- ההופך את הגלל ברשות הרבים
The Gemara analyzes Rebbe Elazar’s position about one who is mafkir his obstacles in רשות הרבים. A Mishnah states: ההופך את הגלל ברה"ר – If one turns over dung he found in רשות הרבים, he is liable for damages it causes. Rebbe Elazar said this is only שנתכוין לזכות בהן – where he intended to acquire it, but if not, he is not liable. This implies that Rebbe Elazar exempts someone who is mafkir his obstacles!? Rav Ada bar Ahava answered that the case is where he returned it to its original place, so is not liable unless he acquired it. Ravina compared it to one who discovers an open pit, covers it, and then removes the cover. Since he did not create the hazard, but merely returned it to its original state, he is not liable. However, Mar Zutra the son of Rav Mari objected that the cases are not analogous, because the bor was not undone when it was covered, whereas הכא אסתלק להו מעשה ראשון – here, the first act (of the dung being placed there) was undone. This is similar to one who fills an open pit, then digs it again, for which he is liable!? Rav Ashi answered: כשהפכה לפחות משלשה – the case is where he turned over [the dung] less than three tefachim from the ground and is not considered undoing the original act. Thus, he is only responsible if he acquires it.
