FST המניח את הכד

MISHNA: In the case of one who places a kad, a type of vessel, in the public domain and another person comes and stumbles on it and breaks it, the other person is exempt from paying for what he broke. And if the one who stumbled incurred damage by it, the owner of the ḥavit, a type of vessel, is liable to pay restitution for his damage.

§ The mishna teaches concerning the vessel placed in the public domain: If another person came and stumbled on it and broke it, he is exempt. The Gemara asks: Why is he exempt? Although this happened in the public domain, he should examine the road and then continue walking.

The Sages of the school of Rav said in the name of Rav: The ruling of the mishna is taught with regard to one who placed not just one barrel in the road, but rather filled the entire public domain with barrels, blocking the path. Since the public domain belongs to everyone, a pedestrian is entitled to traverse the road even if it necessitates breaking the vessels. Shmuel says: The ruling of the mishna is taught with regard to a case where he broke it in the dark. Therefore, he could not have avoided breaking the barrel by examining the road in front of him. Rabbi Yoḥanan says: The ruling of the mishna is taught with regard to a case where the barrel was placed at the corner of the road, and so the pedestrian could not have seen it, as he rounded the corner, before stumbling on it.

Rav Pappa said: The mishna is precise only according to either the explanation of Shmuel or that of Rabbi Yoḥanan, but not that of Rav. As, if the mishna is explained in accordance with the explanation of Rav, what is the reason it refers specifically to a case where one stumbled on the barrel? Even if he broke the barrel intentionally he should not be liable to pay, as the owner of the barrel had no right to block the public road.

Rav Zevid said in the name of Rava in defense of Rav’s explanation: The same is true even if he broke the barrel intentionally. And as for this fact, that the tanna of the mishna teaches a case where he stumbled, it is because he wants to teach in the last clause: And if he incurred damage due to the vessel, the owner of the ḥavit is liable to pay for his damage. As this ruling applies specifically when he stumbled, but if he broke the barrel intentionally and incurred damage in the process, the owner of the barrel is not required to compensate him. What is the reason for this? Although the pedestrian had the right to break the barrel, it is he who damaged himself, by not being careful while breaking it. Therefore, in the first clause the mishna teaches a case where he stumbled. Accordingly, the mishna’s wording is precise according to Rav’s explanation as well.

Rabbi Abba said to Rav Ashi that this is what they say in the West, Eretz Yisrael, in the name of Rabbi Ulla, in explanation of the mishna: Even if the barrel is clearly visible, one who stumbles on it is exempt from liability because the typical manner of people is not to examine the roads, as they assume that the road is unobstructed. Therefore, one who breaks an item placed in the road as a result of not watching is not liable to pay restitution.

The Gemara relates: There was an incident in Neharde’a where a pedestrian stumbled on a jug in an open area and broke it, and Shmuel deemed him liable to pay for the damage. A similar incident took place in Pumbedita, and Rava deemed the person liable to pay.

The Gemara asks: Granted, Shmuel ruled in accordance with his halakhic opinion that the exemption stated in the mishna refers specifically to a case where one stumbles in the dark, as otherwise he is liable for breaking the barrel, since he should have examined the road. But with regard to Rava, shall we say that he holds in accordance with Shmuel’s opinion that one who breaks an item in the public domain is exempt from paying for it only if it was dark?

Rav Pappa said: That inference is not necessary, as this incident was at the corner where there was an olive press [de’atzera], where it is known that people put their jugs down while waiting for oil. Consequently, since they were acting with permission, a pedestrian should examine the road and then continue walking.