פירוש על בבא מציעא 10:5

ונפל – into midst of the garden of his fellow.

Introduction Mishnah five can actually be divided into two distinct units: sections one and two, and sections three through five. The first unit begins with a situation in which one person’s wall fell into another’s garden. Instead of clearing his fallen stones the owner of the wall wishes to compensate the owner of the garden by giving him the fallen stones. Section two deals with a similar scenario in which an employer wishes to compensate his employee by giving him some of the product instead of giving him his wages in money. Sections three through five all deal with environmental damages done to the public domain.

הגיעוך – take possession of them and clear them for yourself.

If one’s wall was near his fellow’s garden and it fell down and his fellow said to him, “Clear away your stones”, and he answered, “They have become yours”, they do not listen to him. If after the other (the owner of the had accepted he (the owner of the said to him, “Here is your expenditures and I will take back what is mine”, they do not listen to him. In the scenario in section one a person’s wall collapsed into another person’s neighboring garden. In a typical situation it would be the owner of the wall’s responsibility to clear the stones, but they would nevertheless still belong to him. If the owner of the wall were to say to the owner of the garden that the latter may keep the stones, and thereby exempt himself from the responsibility of clearing them, he is not listened to. In other words the owner of the garden can force the owner of the wall to clear his stones. If the owner of the garden were to accept the offer and take the stones, the owner of the wall cannot later change his mind and force the owner of the garden to return them. Even if the owner of the wall repays the owner of the garden for the work of removing the stones, he cannot force him to give them back. Once the deal is done, the owner of the wall does not have a right to revoke it.

אין שומעין לו – if this one doesn’t want, he doesn’t purchase them and this one is liable to clear them.

If one hired a laborer to help him in his work with chopped straw and stubble, and the laborer said to him, “Give me my wages”, and he said to him, “Take as your wages that with which you have labored”, they do not listen to him. If after the other (the had accepted he (the said to him, “Here are your wages and I will take what is mine”, they do not listen to him. In this scenario, in which the laws and language are similar to those in the previous mishnah, a person hires a worker to work [in his field collecting] straw and stubble. When it comes time to pay his wages the employer attempts to force the employee to accept the collected straw and stubble as the wages. The mishnah teaches that the employee need not accept such wages and may force the employer to pay him with money. If, however, the employee accepts the straw and stubble as his wages, the employer may not later change his mind and attempt to recover the straw and stubble by paying the employee his wages in money. Again, once the deal has been accepted the employer has no subsequent right to revoke it.

בתבן ובקש – to gather them of his own, or from something ownerless.

One who removes his manure into the public domain: from the time he removes it another may take it to manure [his fields]. For obvious reasons, one may not remove his animal manure into the public domain. If one did so, the manure, which in their time was considered valuable, became legally ownerless and anyone could come and claim it as their own.

אין שומעין לו – even though that it in every place we have what is equivalent to money is like money, concerning a hired worker, it is not like this, for it is written (Leviticus 19:13): “The wages of a laborer shall not remain,” on what that he makes a condition explicitly is implied.

One may not soak clay or make bricks in the public domain, but clay may be kneaded in the public domain but not bricks. Similarly, one is not allowed to make bricks or soak clay in the public domain, for these types of work would pollute property that does not belong to any one person. The mishnah does allow him to mix the clay in the public domain, for the clay would immediately be used in the building process. This type of mixing is brief as opposed to the original soaking of the clay which is a longer process and therefore forbidden in the public domain. Similarly making bricks takes a considerable amount of time and is therefore forbidden in the public domain.

המוציא מוציא והמזבל מזבל – when this one brings it (i.e., the manure) from the cattle-shed to the public domain, the carrier brings it to manure, and he is not permitted to detain it there.

One who builds in the public domain: one brings the stones and another builds (. And if he causes damage, he pays what he has damaged. Rabban Shimon ben Gamaliel says: “He may, indeed, make preparation for his work for thirty days [in the public domain]. In order to build a house or other such structure in the private domain a person will often need to use the public domain to keep his wood and stones. The mishnah teaches that if one wishes to make such a use of the public domain, one person must bring the wood and stones and another build with them immediately. In other words it is forbidden to leave them there for an extended period of time. Furthermore, even though the mishnah permits using the public domain for such a purpose, if the person caused damage he is liable. Rabban Shimon ben Gamaliel disagrees with the opinion taught in sections four and five. According to Rabban Shimon ben Gamaliel one may use the public domain for up to thirty days to prepare building properties: bricks, clay, stones and other necessities.

גובלין טיט – to put it immediately into the building.

Questions for Further Thought:
• What is the nature of the public domain in the eyes of the author’s of the mishnah? What principles cause them to decide the law in such a manner? Would it be proper to consider the Rabbis to be environmentalists or do they have other factors motivating them?

והבונה בונה – he receives them from the person who brings them and builds.

מתקן – they are ready at hand in the public domain all thirty days, and he is not liable for damages. But the Halakha is not according to Rabban Shimon ben Gamaliel.