רשות הרבים כזירת התקלויות

And if a man shall open a pit, or if a man shall dig a pit and not cover it, and an ox or an ass fall therein, the owner of the pit shall make it good; he shall give money unto the owner of them, and the dead beast shall be his.

There are four primary causes of injury: the ox and the pit and the crop-destroying beast and fire. [The distinctive feature of] the ox is not like [that of] the crop-destroying beast, nor is [the distinctive feature of] either of these, which are alive, like [that of] fire, which is not alive; nor is [the distinctive feature of] any of these, whose way it is to go forth and do injury, like [that of] the pit, whose way it is not to go forth and do injury. What they have in common is that it is their way to do injury and that you are responsible for caring over them; and if one of them did injury whoever [is responsible] for the injury must make restitution [to the damaged party] with the best of his land.

MISHNA: If this person came in the public domain with his barrel, and that person came from the opposite direction with his cross beam, and this one’s jug was broken by that one’s cross beam, the one carrying the cross beam is exempt, because this one had permission to walk in the public domain, and that one also had permission to walk there. If they were walking in the same direction, so that the owner of the cross beam was walking first, in front, and the owner of a barrel last, behind him, and the barrel was broken by the cross beam, the owner of the cross beam is exempt, since the owner of the barrel saw him in front of him and should have been more careful. But if the owner of the cross beam stopped, causing the barrel to collide with the beam and break, the former is liable, since the latter had no way of anticipating that he would stop. And if he said to the owner of the barrel: Stop, he is exempt from liability for breaking the barrel. Conversely, if the owner of the barrel was walking first and the owner of the cross beam last, and the barrel was broken by the cross beam, the owner of the cross beam is liable. But if owner of the barrel stopped, the owner of the cross beam is exempt from liability for breaking the barrel. And if he said to the owner of the cross beam: Stop, the owner of the cross beam is liable. And similarly, these halakhot apply in a case where this one came with his lamp and that one came with his flax, and the lamp set fire to the flax.

And to seal, i.e., if one sealed another’s window in his presence, there is an acquired privilege established immediately to keep the window sealed, as it is not common behavior for a person to have his source of light sealed in his presence and remain silent. The fact that he did not immediately protest indicates that the one who sealed the window had the legal right to do so unilaterally, or that the owner of the window agreed. § The mishna teaches that if one purchased a house in another, adjacent courtyard, he may not open the house into a courtyard belonging to partners. The Gemara explains: What is the reason for this? Because by adding residents to the courtyard it increases their traffic, and the residents of the courtyard do not wish to be disturbed by additional people passing through. The Gemara questions this. But say the last clause of the mishna: Rather, if he desired to build a loft, he may build a room within his house, or he may build a loft above his house, and have it open into his house, not directly into the courtyard. But if he does so, isn’t there still a concern that it increases the traffic? Rav Huna said as an explanation: What does the mishna mean when it says that he may build a room? It means that he may divide an existing room in two. And what is the loft to which the mishna is referring? It is an internal story created by dividing an existing space into two stories. MISHNA: A person may not open an entrance opposite another entrance or a window opposite another window toward a courtyard belonging to partners, so as to ensure that the residents will enjoy a measure of privacy. If there was a small entrance he may not enlarge it. If there was one entrance he may not fashion it into two. But one may open an entrance opposite another entrance or a window opposite another window toward the public domain. Similarly, if there was a small entrance he may enlarge it, and if there was one entrance he may fashion it into two. GEMARA: The Gemara asks: From where are these matters, i.e., that one may not open an en-trance opposite another entrance, or a window opposite another window, derived? Rabbi Yoḥanan says that the verse states: “And Balaam lifted up his eyes, and he saw Israel dwelling tribe by tribe; and the spirit of God came upon him” (Numbers 24:2). The Gemara explains: What was it that Balaam saw that so inspired him? He saw that the entrances of their tents were not aligned with each other, ensuring that each family enjoyed a measure of privacy. And he said: If this is the case, these people are worthy of having the Divine Presence rest on them. The mishna teaches that if there was a small entrance he may not enlarge it. Rami bar Ḥama thought to say this means that if the entrance was the width of four cubits, one may not fashion it to the width of eight cubits, as he would then be allowed to take eight corresponding cubits in the courtyard. The halakha is that one is entitled to utilize the area of the courtyard up to a depth of four cubits along the width of the opening. But if the entrance was the width of two cubits and one wishes to fashion it to the width of four cubits, one may well do so, as in any event he already had the right to use an area of four cubits by four cubits in front of the entrance. Rava said to him: This is not so, as his neighbor can say to him: I can conceal myself from you with there being a small entrance, but I cannot conceal myself from you with there being a large entrance. The mishna teaches that if there was one entrance he may not fashion it into two. In this case as well, Rami bar Ḥama thought to say that this means if the entrance was the width of four cubits he may not make it into two openings, each the width of two cubits, as he would then be allowed to take eight corresponding cubits in the courtyard, four for each entrance. But if it was the width of eight cubits and he wishes to make it into two openings, each the width of four cubits, he may well do so, as in any event he already had the right to use an area of eight cubits by four cubits in front of his entrance. Rava said to him: This is not so, as his neighbor can say to him: I can conceal myself from you with there being one entrance, but I cannot conceal myself from you with there being two entrances. The mishna teaches: But one may open an entrance opposite another entrance or a window opposite another window toward the public domain. Why is this so? Because he can say to the one who wishes to protest: Ultimately, you must conceal yourself from the people of the public domain. Since you cannot stop them from passing by and therefore cannot engage in behavior that requires privacy with your entrance open, it is of no consequence to you if I open an entrance as well. MISHNA: One may not form an empty space be-neath the public domain by digging pits, ditches, or caves. Rabbi Eliezer deems it permitted for one to do so, provided that he places a covering strong enough that a wagon laden with stones would be able to tread on it without breaking it, therefore ensuring that the empty space will not cause any damage to those in the public domain. One may not extend projections or balconies [ugzuztraot] into the public domain. Rather, if he desired to build one he may draw back into his property by moving his wall, and extend the projection to the end of his property line. If one purchased a courtyard in which there are projections and balconies extending into the public domain, this courtyard retains its presumptive status, i.e., the owner has the acquired privilege of their use, and the court does not demand their removal. GEMARA: The Gemara asks: Rabbi Eliezer’s opinion that if the covering of the space is strong enough to support a wagon laden with stones then it is permitted to dig out the empty space, is eminently reasonable; but what do the Rabbis hold? The Gemara answers: There are times when the cover erodes over time, and he is not aware, thereby potentially causing damage to those in the public domain. The mishna teaches that one may not extend projections or balconies into the public domain. The Gemara relates: Rabbi Ami had a projection that protruded into an alleyway, and a certain man also had a projection that protruded into the public domain, and the general public was preventing the man from leaving it there, as it interfered with traffic. He came before Rabbi Ami, who said to him: Go sever your projection. The man said to him: But the Master also has a similar projection. Rabbi Ami said to him: It is different, as mine protrudes into an alleyway, where a limited number of people live, and the residents of the alleyway waive their right to protest to me. Yours protrudes into the public domain, which does not belong to any specific individuals. Who can waive their right to protest to you? The Gemara relates: Rabbi Yannai had a tree that was leaning into the public domain. There was a certain man who also had a tree that was leaning into the public domain, and the general public was preventing him from leaving it there, insisting he cut it down, as required by the mishna (27b). He came before Rabbi Yannai, who said to him: Go now, and come tomorrow. At night, Rabbi Yannai sent and had someone cut down that tree that belonged to him. The next day, that man came before Rabbi Yannai, who said to him: Go, cut down your tree. The man said to him: But the Master also has a tree that leans into the public domain. Rabbi Yannai said to him: Go and see: If mine is cut down, then cut yours down. If mine is not cut down, you do not have to cut yours down, either. The Gemara asks: At the outset what did Rabbi Yannai hold, and ultimately, what did he hold? The Gemara replies: At the outset, he held that the general public is amenable to having the tree there, as they sit in its shade. Once he saw that they were preventing someone else who owned a tree from keeping his, he understood that it was only out of respect that they did not object to his tree being there. He therefore sent someone to cut it down. The Gemara asks: But why did he tell the man to return the next day? Let him say to him: Go cut down your tree, and then I will cut mine down. The Gemara answers: Because of the statement of Reish Lakish, who said: The verse states: “Gather yourselves together and gather [hitkosheshu vakoshu]” (Zephaniah 2:1), and this can be explained homiletically to mean: Adorn [keshot] yourself and afterward adorn others, i.e., act properly before requiring others to do so. § The mishna teaches that one may not extend projections or balconies into the public domain. Rather, if he desired to build one he may draw back into his property by moving his wall, and extend the projection to the end of his property line. A dilemma was raised before the Sages: If one drew back into his property but did not extend the projection at that time, what is the halakha concerning whether he may return and extend it at a later date? Rabbi Yoḥanan says: If one drew back into his property, he may extend it even later, and Reish Lakish says: If one drew back into his property but did not build the projection at that time, he may not extend it later. The Gemara presents an alternative version of the dispute: Rabbi Ya’akov said to Rabbi Yirmeya bar Taḥlifa: I will explain the matter to you. To later extend a projection, everyone agrees that he may extend it, since he is adding within his own property. Where they disagree is with regard to whether he may return the walls to their prior place. And with regard to this disagreement the opposite was stated: Rabbi Yoḥanan says he may not return the walls to their prior place, and Reish Lakish says he may return them. Rabbi Ya’akov explains their reasoning: Rabbi Yoḥanan says that he may not return the walls to their prior place because of the statement of Rav Yehuda, as Rav Yehuda says: With regard to a path that the public has established as a public thoroughfare, it is prohibited to ruin it, i.e., to prevent people from using it. Once the public has become accustomed to using the place where his wall had stood, he may not repossess that space. And Reish Lakish says that he may return the walls to their prior place, because that matter applies in a case where there is no space, i.e., if he were to move back the wall there would be no space for the public to walk, but here there is space, since they can still walk through the public domain. The mishna teaches that if one purchased a courtyard in which there are projections and balconies extending into the public domain, this courtyard retains its presumptive status, allowing the owner to use the projections. Rav Huna says: If the wall of the courtyard fell, he may return and build it as it was, including the projections or balconies. The Gemara raises an objection based on that which is taught in a baraita (Tosefta 9:17): One may not plaster, and one may not tile, and one may not paint [mefayyeḥin] images in the present, as a sign of mourning for the destruction of the Temple. But if one purchased a courtyard that was plastered, tiled, or painted with images, this courtyard retains its presumptive status, and it is assumed that it was done in a permitted manner. If it then fell, he may not return and build it in its previous form. This indicates that one may not rebuild a building in a manner that is prohibited, even if there was an acquired privilege to maintain it in that manner. The Gemara answers: A case of forbidden matters is different, i.e., in the case of the baraita, he may not rebuild it because it is prohibited for him to do so. In this mishna, the issue is encroachment upon the rights of others, and once he had an acquired privilege to use the projections or balconies, he maintains that right. § With regard to the ruling of the above-quoted baraita, the Sages taught (Tosefta, Sota 15:9): A person may not plaster his house with plaster, but if he mixed sand or straw into the plaster, which dulls its luster, it is permitted. Rabbi Yehuda says: If he mixed sand into it, it is white cement [terakesid], which is of a higher quality than standard plaster, and it is prohibited, but if he mixed in straw, it is permitted. § Having mentioned the prohibition against plastering, which is a sign of mourning over the destruction of the Temple, the Gemara discusses related matters. The Sages taught in a baraita (Tosefta, Sota 15:11): When the Temple was destroyed a second time, there was an increase in the number of ascetics among the Jews, whose practice was to not eat meat and to not drink wine. Rabbi Yehoshua joined them to discuss their practice. He said to them: My children, for what reason do you not eat meat and do you not drink wine? They said to him: Shall we eat meat, from which offerings are sacrificed upon the altar, and now the altar has ceased to exist? Shall we drink wine, which is poured as a libation upon the altar, and now the altar has ceased to exist? Rabbi Yehoshua said to them: If so, we will not eat bread either, since the meal-offerings that were offered upon the altar have ceased. They replied: You are correct. It is possible to subsist with produce. He said to them: We will not eat produce either, since the bringing of the first fruits have ceased. They replied: You are correct. We will no longer eat the produce of the seven species from which the first fruits were brought, as it is possible to subsist with other produce. He said to them: If so, we will not drink water, since the water libation has ceased. They were silent, as they realized that they could not survive without water. Rabbi Yehoshua said to them: My children, come, and I will tell you how we should act. To not mourn at all is impossible, as the decree was already issued and the Temple has been destroyed. But to mourn excessively as you are doing is also impossible, as the Sages do not issue a decree upon the public unless a majority of the public is able to abide by it, as it is written: “You are cursed with the curse, yet you rob Me, even this whole nation” (Malachi 3:9), indicating that the prophet rebukes the people for neglecting observances only if they were accepted by the whole nation. Rabbi Yehoshua continues: Rather, this is what the Sages said: A person may plaster his house with plaster, but he must leave over a small amount in it without plaster to remember the destruction of the Temple. The Gemara interjects: And how much is a small amount? Rav Yosef said: One cubit by one cubit. Rav Ḥisda said: This should be opposite the entrance, so that it is visible to all. Rabbi Yehoshua continues: The Sages said that a person may prepare all that he needs for a meal, but he must leave out a small item to remember the destruction of the Temple. The Gemara interjects: What is this small item? Rav Pappa said: Something akin to small, fried fish. Rabbi Yehoshua continues: The Sages said that a woman may engage in all of her cosmetic treatments, but she must leave out a small matter to remember the destruction of the Temple. The Gemara interjects: What is this small matter? Rav said: She does not remove hair from the place on the temple from which women would remove hair. The source for these practices is a verse, as it is stated: “If I forget you, Jerusalem, let my right hand forget its cunning. Let my tongue cleave to the roof of my mouth, if I remember you not; if I set not Jerusalem above my highest joy” (Psalms 137:5–6). The Gemara asks: What is the meaning of: Above my highest [rosh] joy? Rav Yitzḥak says: This is referring to the burnt ashes that are customarily placed on the head [rosh] of bridegrooms at the time of their wedding celebrations, to remember the destruction of the Temple. Rav Pappa said to Abaye: Where are they placed? Abaye replied: On the place where phylacteries are placed, as it is stated: “To appoint to them that mourn in Zion, to give to them a garland in place of ashes” (Isaiah 61:3). Since phylacteries are referred to as a garland (see Ezekiel 24:17), it may be inferred from this verse that the ashes were placed in the same place as the phylacteries. The baraita continues: And anyone who mourns for the destruction of Jerusalem will merit and see its joy, as it is stated: “Rejoice with Jerusalem, and be glad with her, all that love her; rejoice for joy with her, all that mourn for her” (Isaiah 66:10). It is taught in a baraita (Tosefta, Sota 15:10) that Rabbi Yishmael ben Elisha said: From the day that the Temple was destroyed, by right, we should decree upon ourselves not to eat meat and not to drink wine, but the Sages do not issue a decree upon the public unless a majority of the public is able to abide by it. And from the day that the wicked kingdom, i.e., Rome, spread, who decree evil and harsh decrees upon us, and nullify Torah study and the performance of mitzvot for us, and do not allow us to enter the celebration of the first week of a son, i.e., circumcision, and some say: To enter the celebration of the salvation of a firstborn son; by right we should each decree upon ourselves not to marry a woman and not to produce offspring, and it will turn out that the descendants of Abraham our forefather will cease to exist on their own, rather than being forced into a situation where there are sons who are not circumcised. But concerning a situation such as this, the following principle is applied: Leave the Jews alone and do not impose decrees by which they cannot abide. It is better that they be unwitting sinners, who do not know that what they are doing is improper considering the circumstances, and not be intentional wrongdoers, who marry and procreate despite knowing that they should not.

§ The Sages taught: A person should not throw stones from his property into the public domain. An incident occurred involving a certain individual who was throwing stones from his property into the public domain, and a certain pious man found him. The latter said to him: Lowlife [reika], for what reason are you throwing stones from property that is not yours into your property? The man mocked him, as he did not understand what he meant, as the property from which he was throwing stones was his. Some days later, he was forced to sell his field from which he had thrown the stones. And he was walking in the same public domain into which he had thrown them, and he stumbled on those same stones. He said: That pious man said it well to me when he said: For what reason are you throwing stones from property that is not yours into your own property, since that property no longer belongs to me, and only the public domain remains mine to use.