We continue in Chapter 3 of Tractate Bava Kamma, Mishnah 3, where we will further touch upon the laws of Bor. The Mishnah deals with two matters: one who takes his straw and stubble out to the public domain to turn them into manure, and one who turns over dung in the public domain in order to acquire it.
"Hamotzi es tivno v'es kasho lirshus harabim lezavlan" - One who takes his straw and his stubble out to the public domain to turn them into manure:
This refers to a person who takes his straw or his stubble and the like out to the public domain, intending for them to be trampled by passersby and by the traffic in the street, so that they will be prepared to serve as manure in his fields. In simple terms: he is not placing something in the public domain for no reason and causing a hazard, but rather he does this for his personal profit.
"Vehuzak bahen acher, chayav benizko" - And if another person was injured by them, he is liable for his damage - if a person is injured by the straw that was placed outside, the one who placed it is obligated to pay for this. This is the good old law of Bor.
"Vechol hakodem bahen zachah" - And whoever is first to them acquires them - here the Mishnah adds a penalty. The Sages said: The one who places something in the public domain does indeed maintain his ownership over it, but since he placed it there for his personal financial profit, they penalize him and tell him that he has no right to this profit. On the contrary, through the power of 'hefker beis din hefker' (that which a rabbinical court declares ownerless is ownerless), what he placed in the public domain becomes ownerless, and whoever wants to take it may acquire it for himself in order to remove the hazard from the public domain - and the one who placed it loses out and has no claim against them.
Even though the Sages established that the item is ownerless, the one who took it out is certainly liable for any damage that will be caused by it. The foundation for this is the well-known rule of Bor: One who digs a pit is merely digging a void, and there is nothing there that one can own, yet the Torah still calls him the "owner of the pit." The same applies here: even though the straw is ownerless, since he is the one who took it out there so that it would become manure, he is its owner with regard to liability.
"Rabban Shimon ben Gamliel omer: Kol hamekalkelin birshus harabim vehiziku chayavin leshalem" - Rabban Shimon ben Gamliel says: Anyone who creates a hazard in the public domain and caused damage is liable to pay:
Seemingly, Rabban Shimon ben Gamliel is repeating the exact same thing: Anyone who causes a hazard that damages the quality of the public domain, and people are injured by what he did, is liable to pay. However, his intention is to teach something new: even if taking out the straw for the purpose of making manure was permitted, the liability nonetheless remains in place.
For taking it out is not always forbidden. The Gemara says that one of the enactments that Yehoshua instituted when they conquered the Land of Israel was that during the season of making manure, a person is permitted to use the public domain and take his straw and the like out there so that it will be trampled, for a limited period of up to thirty days. This is the universal custom, and therefore it was permitted. And regarding this, Rabban Shimon ben Gamliel says: Even though you are permitted to do so, if a person is injured - you are liable, and therefore you must be careful.
These concepts are similar to what was stated in the previous Mishnah regarding water in the public domain, and indeed the previous Mishnah seemingly aligns with the opinion of Rabban Shimon ben Gamliel here, and this is the halachah. In contrast, the Tanna Kamma in our Mishnah, when speaking of a person who was injured by straw that was taken out there to become manure, is speaking of a case where this was not permitted; but during the season of the year when a person is permitted to take his belongings out to the public domain, the Tanna Kamma would hold that he is not liable if a person is injured by them. This is the dispute: one who does this with permission.
And the halachah follows Rabban Shimon ben Gamliel in the previous Mishnah - that even one who acts with permission is liable if a person is injured. And furthermore: according to Rabban Shimon ben Gamliel, the penalty of "vechol hakodem bahen zachah" was stated only in these cases (and even though this is not explicit in the Mishnah, it is so):
When he did so without permission.
When he did so with permission, but left the item there beyond the thirty permitted days - at which point the act becomes without permission.
In these two cases, the penalty is reinstated: whoever wishes to take them - let him come and take them, thereby removing the hazard from the public domain, and he acquires them for himself.
The second part of the Mishnah - "HaHofech es haGalal biRshus HaRabim":
A person walking in the street finds animal droppings - someone's horse left some manure in the middle of the street - and he wants these droppings to fertilize his field. This manure is ownerless; a previous person might be responsible for it, but that is not relevant to our discussion right now, and we will put the first person and his responsibility aside. The new person now wishes to acquire it for himself, and to do so, he "turns over the manure" - he rolls it with his foot and kicks it along the street in the public domain. "VeHuzak bo acher - chayav b'nizko" - another person was injured, for example he twisted his ankle on that manure which the first person acquired by kicking it along the street to take it to his home. Now the new owner is responsible for the damage, as he took ownership of it.
Question: But isn't the acquisition made through lifting?
Seemingly, to acquire an item, one must lift it from the ground, whereas this person did not lift it at all but merely kicked it on the ground. The answer is that the need for a proper lifting - picking up the object in a valid manner - applies specifically when transferring from one person to another. However, when the object is ownerless, the slightest lifting, even one millimeter above the ground while he kicks or rolls it in the street, is sufficient to acquire it and make it his. And from the moment it becomes his - he is responsible, and he can no longer abandon it; he is responsible for the hazard he caused.
Two cases for comparison - the stone in the street:
Merely kicking it: A person walking in the street sees a stone lying there and kicks it further, and does not intend to acquire it, and another person is injured by the stone in its new location - he is exempt. This is because it is an existing hazard and an existing obstacle in the public domain, and he did not place it there; he moved it from its place, but it was dangerous before and is dangerous now.
Lifting it and returning it: A person who lifts the stone - just as children lift things and ask, "Can we take it home?", and the same law applies to a post-bar mitzvah adult - and intends to take it to his home, but ultimately changes his mind and returns it to the place he found it. Now he becomes responsible: if he lifted it three tefachim above the ground, whether he intended to acquire it or not, the rule of lavud no longer applies, meaning it is as if the hazard was removed and it is no longer a pit. Therefore, when he places it back on the ground - he is the one who placed it there, and if he did so intentionally, even though it is ownerless, it does not matter and he is responsible.
We find that regardless of his desire to acquire the object, if he removed it from the public domain - meaning he lifted it three tefachim above the ground - and returned it and placed it, he is responsible. In our Mishnah here, this is not the case: here he kicks the manure in the street or rolls it, and as long as it rises even one millimeter from the ground - he acquired it, and from now on he is responsible if a person is injured, and such is the halachah.
In summary: In this Mishnah we learned the law of one who takes out straw and stubble to the public domain to turn them into manure - he is liable for its damage, and is penalized with "whoever comes first acquires them" based on the principle of hefker beis din hefker, and even though it is ownerless, he is considered its owner regarding damage according to the law of the "owner of the pit". We discussed Yehoshua's enactment permitting thirty days during the manure season, and the dispute between the Tanna Kamma and Rabban Shimon ben Gamliel regarding one who does so with permission - that the halachah follows Rabban Shimon ben Gamliel, and the penalty of whoever comes first is only stated when done without permission or when leaving it beyond thirty days. In the second part of the Mishnah, we learned the law of one who turns over the manure: an ownerless item is acquired even through any slight lifting, and consequently the one who acquires it becomes liable for its damages, unlike one who merely kicks a stone who is exempt, and unlike one who lifts it three tefachim and returns it, who becomes responsible.