Tosefta for Pesachim 112:3
ופורצין פרצות: אמר עולא א"ר שמעון בן לקיש מחלוקת בשל מכבדות דרבנן סברי גזרינן שמא יעלה ויתלוש ואנשי יריחו סברי לא גזרינן שמא יעלה ויתלוש אבל בשל בין הכיפין דברי הכל מותר
so that while they held as he who rules, There is no trespass-offering [due] when [one benefits from] what grows, the Rabbis held, Granted that there is no trespass-offering [due], there is nevertheless a prohibition.' And they made breaches [etc.]' 'Ulla said in the name of R'Simeon B'Lakish: The controversy is in respect of [the dates of] the upper branches, for the Rabbis held, We forbid them preventively, lest he go up and cut them off, while the inhabitants of Jericho held, We do not forbid them preventively, lest he go up and cut them off. But as for the dates which are among the lower branches, all agree that it is permitted.<span class="x" onmousemove="('comment',' Mekabedoth are the upper branches on which dates grow; kipin are the lower branches where dates do not grow. Rashi: they differ in respect of the dates which fell on the Festival and were caught on these upper branches. Since they are high up, he must climb up to get them, and the Rabbis held that we fear that this will lead him to pull off some dates still on the branches, which is forbidden; while the inhabitants of Jericho held that there was no need to fear this. But all agree that he may take those which had been caught by the lower branches, for no dates grow there in any case, that we should fear that he will pull some off. Tosaf.: the reference is to dates which fell off before the Festival commenced, being caught either by the upper or the lower branches, and then they fell to the ground on the Festival. The Rabbis held that those which had been caught on the upper branches are forbidden, for since they were there at twilight, when the Festival was about to commence, and also there are dates growing on these upper branches, we fear that he might ascend and pluck some; while the inhabitants of Jericho did not thus forbid them, preventively, since they were already detached on the eve of the Festival. But all agree that those which had fallen on the lower branches in the first');"><sup>3</sup></span>