Today's daf shares two Mishnayot. The first teaches that one who pours water in the public domain that causes damage to another person is liable to pay for his damage. Similarly, a person is liable if he conceals a thorn or a piece of glass in a wall that is adjacent to the public domain, or if he puts up a fence that falls into the public domain and injures someone.
The rabbis have lots and lots of questions. Was the person injured by the water or by the ground? Is mud the same thing as water? Was it the rainy season? Or was the water absorbed into the ground? We are reminded that even in the rainy season when people are permitted to flush out their covered cisterns of water, now putrid after the summer months, they are liable if that water causes an injury to someone in the public domain.
As for the dangerous items found in a person's wall, the rabbis wonder about their concealment. Was an effort made to protect people from injury? Certainly we know that it is not the nature of people to rub themselves up against walls. But was the wall stable? Can we understand this better by remembering that a person who uses another person's bucket to cover up a pit in the ground is liable if the person who owns the bucket removes it and takes it back? What about the knowledge that pious people were known to bury potentially dangerous objects at least three handbreadths under a field to ensure that the plow would not be obstructed? Other examples of pious practices are shared, too.
Our second Mishna teaches us that a person who brings straw or hay (to be trampled on and then used as fertilizer) into the public domain is liable if someone is injured by those items. And the person who takes possession of those items acquires them — they are considered to be ownerless once in the public domain. Same goes for one who turns over dung in the public domain — any damages incurred are to be paid by the person who turns the dung.
The rabbis debate whether or not a person is actually liable for something that does not belong to him any longer. This is the case in other circumstances. But hay and straw is slippery, so perhaps this ordinance was based on the practical need for people to take responsibility for the amount of their own property that they put into the street.
Should this Mishna be informed by our understandings of what is done in the case of a robbery? Is it stealing to take something that is ownerless? What about taking something that another person is responsible for should damages be incurred? Perhaps this Mishna should be informed by laws regarding loans: charges for the principal and interest. If we erase the interest, should we erase damages done in this case? The rabbis note that in this case it is the principal that causes the damages. The rabbis seem to be uncomfortable comparing this action with robbery.
In the end, the rabbis make an interesting ruling. The halacha suggests that people should not take these items, like straw or hay, from the public domain. If they do, and whether or not they should at all is disputed, they take possession only of the value of the items' enhancements rather than their actual value. Further, this is the halacha, but it should not be made a public ruling. Why not? Because a person who asks a rabbi whether or not he is permitted to take the straw should be denied. Only someone who already understands the halacha should be permitted to take the straw. A classic case of undemocratic rule! But perhaps a ruling that would keep people 'in line'. And that is always the issue that arises in a democratic state: do the people know enough to be trusted?
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