Commentary for Bava Kamma 59:28

רב אשי אמר

<b><i>MISHNAH</i></b>. IF A MAN REMOVES HIS STRAW AND STUBBLE INTO THE PUBLIC GROUND TO BE FORMED INTO MANURE, AND DAMAGE RESULTS TO SOME OTHER PERSON, THERE IS LIABILITY FOR THE DAMAGE, AND WHOEVER SEIZES THEM FIRST ACQUIRES TITLE TO THEM. R. SIMEON B. GAMALIEL SAYS: WHOEVER CREATES ANY NUISANCES ON PUBLIC GROUND CAUSING [SPECIAL] DAMAGE IS LIABLE TO COMPENSATE, THOUGH WHOEVER SEIZES OF THEM FIRST ACQUIRES TITLE TO THEM. IF HE TURNS UP DUNG THAT HAD BEEN LYING ON PUBLIC GROUND, AND DAMAGE [SUBSEQUENTLY] RESULTS TO ANOTHER PERSON, HE IS LIABLE FOR THE DAMAGE. <b><i>GEMARA</i></b>. May we say that the Mishnaic ruling<span class="x" onmousemove="('comment',' Imposing liability in the commencing clause. ');">²⁴</span> is not in accordance with R. Judah? For it was taught: R. Judah says: When it is the season of taking out foliage everybody is entitled to take out his foliage into the public ground and heap it up there for the whole period of thirty days so that it may be trodden upon by the feet of men and by the feet of animals; for upon this understanding did Joshua make [Israel]<span class="x" onmousemove="('comment',' B.M. 118b. Why then liability for the damage caused thereby during the specified period permitted by law? ');">²⁵</span> inherit the Land. — You may suggest it to be even in accordance with R. Judah, for R. Judah [nevertheless] agrees that where [special] damage resulted, compensation should be made for the damage done. But did we not learn that R. Judah maintains that in the case of a Chanukah candle<span class="x" onmousemove="('comment',' Placed outside a shop and setting aflame flax that has been passing along the public road. ');">²⁶</span> there is exemption on account of it having been placed there with authorization?<span class="x" onmousemove="('comment',' Infra p. 361. ');">²⁷</span> Now, does not this authorization mean the permission of the <i>Beth din</i>?<span class="x" onmousemove="('comment',' A permission which has similarly been extended in the case of the dung during the specified period and should accordingly effect exemption. ');">²⁸</span> — No, it means the sanction of [the performance of] a religious duty<span class="x" onmousemove="('comment',' Which is of course absent in the case of removing dung to the public ground, where liability must accordingly be imposed for special damage. ');">²⁹</span> as [indeed explicitly] taught: R. Judah says: In the case of a Chanukah candle there is exemption on account of the sanction of [the performance of] a religious duty. Come and hear: In all those cases where the authorities permitted nuisances to be created on public ground, if [special] damage results there will be liability to compensate. But R. Judah maintains exemption!<span class="x" onmousemove="('comment',' Does not this prove that mere authorization suffices to confer exemption? Cf. n. 2. ');">³⁰</span> — R. Nahman said: The Mishnah<span class="x" onmousemove="('comment',' V. p. 161, n. 5. ');">³¹</span> refers to the time when it is not the season to take out foliage and thus it may be in accordance with R. Judah. — R. Ashi further [said]:

Explore commentary for Bava Kamma 59:28. In-depth commentary and analysis from classical Jewish sources.