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Babylonian Talmud: Tractate Baba Mezi'a
THEY ARE BECOME YOURS,1 HE IS NOT HEEDED. [ON THE OTHER HAND,] IF AFTER THE LATTER AGREED [TO THE PROPOSAL [AND REMOVED THEM] HE SAID, 'HERE ARE YOUR [REMOVAL] EXPENSES, AND I WILL TAKE BACK MINE [THE STONES].' HE IS [LIKEWISE] NOT HEEDED. IF A MAN ENGAGES A LABOURER TO WORK FOR HIM ON STRAW OR STRUBBLE,2 AND WHEN HE DEMANDS HIS WAGES, SAYS TO HIM, 'TAKE THE RESULTS OF YOUR LABOUR FOR YOUR WAGE, HE IS NOT HEEDED. IF AFTER HE AGREED [TO THE PROPOSAL] HE SAID TO HIM, 'HERE IS YOUR PAYMENT, AND I WILL TAKE MY PROPERTY,' HE IS [LIKEWISE] NOT HEEDED.
GEMARA. BROKEN THROUGH: Rab said, The greater part thereof; Samuel ruled, Four [handbreadths]. 'Rab said, The greater part thereof;' but if only four [handbreadths,] one can sow partly above and partly below.3 'Samuel said, Four [handbreadths]:' one cannot [be expected to] sow partly above and partly below. Now, both [disputes] are necessary.4 For if we taught [it] in connection with a dwelling, [it might be said that] only there does Samuel state his ruling, because it is unusual for a man to dwell partly in one place and partly in another; but with respect to sowing, where it is quite usual for a man to sow here a little and there a little, I might say that he agrees with Rab. Whilst if only the present dispute were stated, [I might argue that] only here does Rab hold this view; but in the other case, he agrees with Samuel. Hence both are necessary.
IF HE WAS GIVEN A [FIXED] TIME. And what time is given by the Court? — Said R. Johanan: Thirty days.
IF A MAN'S WALL etc. But since the last clause teaches, 'HERE ARE YOUR [REMOVAL] EXPENSES,' it follows that he [the garden owner] has removed them. Thus, it is only because he removed them;5 but why so? Let his field effect possession for him! For R. Jose son of R. Hanina said: A man's courtyard effects possession for him even without his knowledge! — That is only where he [the original owner] desires to grant him possession; but here he merely seeks to evade him.6
IF A MAN ENGAGES A LABOURER TO WORK WITH HIM ON STRAW etc. Now, both are necessary. For if only the first were stated, that when he proposes, 'LET THEM BE YOURS', HE IS NOT HEEDED, [it might be said that] that is because he [the garden owner] has no wage claim upon him; here, however, that he [the labourer] has a wage claim, I might argue that he [the employer] is listened to, because it is proverbial, 'From your debtor accept [even] bran in payment.' Whilst if this clause [alone] were taught, [it might be that] only in this case, once he [the worker] accepts the proposal, is he [the employer] not heeded,7 because he has a wage claim upon him;8 but in the former case, where he has no wage claim upon him, I might think that he is heeded:9 hence both are necessary.
HE IS NOT HEEDED.10 But has it not been taught. He is heeded? — Said R. Nahman: There is no difficulty: here [in the Mishnah] the reference is to his own work, there [in the Baraitha], to his neighbour's.11 Raba said to R. Nahman: [When he is employed] on his own, what is the reason [that he is not heeded]? Because he [the labourer] can say to him, 'You are responsible for my wages'? [But when employed] by his neighbour he can also say to him, 'You are responsible for my hire'! For it has been taught: If one engaged an artisan to labour on his [work], but directed him to his neighbour's, he must pay him in full, and receive from the owner [of the work actually done] the value of the labour whereby he benefited! — But, said R. Nahman, there is no difficulty: here it refers to his own; there, to that of hefker.12 Raba raised an objection against R. Nahman: That which is found by a labourer [whilst working for another] belongs to himself. When is that? If the employer had instructed him, 'Weed or dig for me to — day.' But if he said to him. 'Work for me to-day' [without specifying the nature of the work], his findings belong to the employer!13 — But, said R. Nahman, there is no difficulty: here [in the Mishnah] the reference is to lifting up; there, to watching.14
Rabbah said: [Whether] 'watching' [effects possession] in the case of hefker is disputed by Tannaim. For we learnt: Those who keep guard over the aftergrowth of the Sabbatical year are paid out of Temple funds.15 R. Jose said: He who wishes can donate [his work] and be an unpaid watcher. Said they [the Sages] to him: You say so, [but then] they are not provided by the public.16 Now, surely, the dispute is on this question: the first Tanna holds that 'watching' hefker effects possession;17 hence, if he is paid, it is well,18 but not otherwise. Whilst R. Jose maintains that 'watching' does not effect possession of hefker; hence, only when the community go and fetch it is possession effected. And what is meant by. 'You say [etc.]'?19 They said thus to him: From your statement20 [and] on the basis of our ruling,21 [it transpires that] the omer22 and the two loaves23 are not provided by the public!24 — Said Raba: That is not so. All agree that 'watching' effects possession of hefker; but they differ here as to whether we fear that he will not deliver it whole-heartedly. Thus, the Rabbis hold that he must be paid, for otherwise there is the fear lest he does not deliver it wholeheartedly,25 whilst R. Jose holds that this fear is not entertained. And what is meant by 'You say'? — They say thus to him: From your statement, [and] on the basis of our ruling that we fear that it will not be surrendered whole-heartedly, the 'omer and the two loaves are not provided by the public.
Others say, Raba said: All agree that 'watching' does not effect possession in the case of hefker; but they dispute here whether we entertain a fear of violent men. The first Tanna holds that the Rabbis enacted that he shall be paid four zuz, so that violent men may hear thereof26 and hold aloof;27 whilst R. Jose holds that they did not enact [thus].28
Baba Mezi'a 118b
And what is meant by 'You say'? They say thus to him: From your statement,[and] on the basis of our opinion, [it follows that] they are not provided by the public.1 And when Rabin came,2 he likewise said in R. Johanan's name: They differ as to whether we fear [the action of] men of violence.
MISHNAH. IF A MAN TAKES OUT MANURE INTO A PUBLIC THOROUGHFARE, IT MUST BE APPLIED [TO THE SOIL] IMMEDIATELY AFTER BEING TAKEN OUT.3 MORTAR MUST NOT BE STEEPED IN THE STREET, NOR MAY BRICKS BE FORMED THERE.4 CLAY MAY BE KNEADED IN THE STREET.5 BUT BRICKS MAY NOT BE [MOULDED]. WHEN ONE IS BUILDING IN A PUBLIC ROAD,6 THE BRICKS MUST BE LAID IMMEDIATELY THEY ARE BROUGHT.7 IF HE CAUSES DAMAGE, HE MUST MAKE IT GOOD. RABBAN SIMEON B. GAMALIEL SAID: ONE MAY PREPARE HIS MATERIALS EVEN THIRTY DAYS BEFOREHAND.8
GEMARA. Shall we say that our Mishnah does not agree with R. Judah? For it has been taught: R. Judah said: When it is the time for manure to be taken out, a man may put his manure out into the street and leave it heaped up for full thirty days, that it should be trodden down by the foot of man and beast for on this condition did Joshua allot the Land to Israel!9 — It may even agree with R. Judah, for he admits that if he thereby causes damage, he must make it good.10 But have we not learned: R. Judah said: In the case of a Chanukah11 lamp he is not liable, because this was done under authority.12 Surely that means, under authority of the Court?13 — No. It means the authority of a precept.14 But it has been taught: All those whom the Rabbis permitted to commit a nuisance on the public thoroughfare,15 if they cause damage, they are bound to pay; whilst R. Judah exempts them! Hence it is clear that our Mishnah does not agree with R. Judah.
Abaye said: R. Judah, Rabban Simeon b. Gamaliel, and R. Simeon16 all maintain that wherever the Sages gave permission [to do a certain thing] and damage was thereby caused, there is no liability. 'R. Judah', as stated. 'Rabban Simeon b. Gamaliel', — for we learnt: ONE MAY PREPARE HIS MATERIALS EVEN THIRTY DAYS BEFOREHAND.17 'R. Simeon', — for we learnt: If he placed it [a stove] in an upper storey, there must be a flooring18 of three handbreadths deep under it;19 but for a small stove,20 one handbreadth.21 Nevertheless, if he causes damage, he must make it good. R. Simeon said: All these measurements were stated only so that if he causes damage he is free from liability.22
Our Rabbis taught: Once the quarryman has delivered [the stones for building] to the chiseller [for polishing and smoothing], the latter is responsible [for any damage caused by them]; the chiseller having delivered them to the haulier, the latter is responsible; the haulier having delivered them to the porter,23 the latter is responsible; the porter having delivered them to the bricklayer, the latter is responsible; the bricklayer having handed them over to the foreman,24 the foreman is liable. But if after he had [exactly]25 laid the stone upon the row, it caused damage, all are responsible. But has it not been taught: Only the last is responsible, whilst all the others are exempt? — There is no difficulty: the latter refers to time-work;26 the former, to contracting.27
MISHNAH. IF TWO GARDENS ARE SITUATED ONE ABOVE THE OTHER, AND VEGETABLES GROW BETWEEN THEM,28 R. MEIR SAID: THEY BELONG TO THE UPPER GARDEN; R. JUDAH MAINTAINED, TO THE LOWER GARDEN. SAID R. MEIR: SHOULD THE OWNER OF THE UPPER GARDEN WISH TO REMOVE HIS GARDEN [I.E., TAKE AWAY THE EARTH], THERE WOULD BE NO VEGETABLES. SAID R. JUDAH: SHOULD THE LOWER ONE WISH TO FILL UP HIS GARDEN [WITH SOIL],29 THERE WOULD BE NO VEGETABLES. THEN, SAID R. MEIR, SINCE BOTH CAN PREVENT EACH OTHER [FROM HAVING VEGETABLES AT ALL], WE CONSIDER WHENCE THE VEGETABLES DRAW THEIR SUSTENANCE.30 R. SIMEON SAID: AS FAR AS [THE OWNER OF] THE UPPER GARDEN CAN STRETCH OUT HIS HAND AND TAKE BELONGS TO HIM, WHILST THE REST BELONGS TO [THE OWNER OF] THE LOWER GARDEN.
GEMARA. Raba said: As for the roots, all agree that they belong to the upper owner. They disagree only with respect to the leaves:31 R. Meir maintains: The leaves are counted with32 the roots; whilst R. Judah holds that they are not. Now, they follow their views [expressed elsewhere]. For it has been taught: That which issues from the trunk and the roots belongs to the landowner: this is R. Meir's opinion. R. Judah said: [That which grows] out of the trunk belongs to the tree-owner; out of the roots, to the land-owner.33
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