תִּבְנוֹ וְקַשּׁוֹ תְּנַן, מִשּׁוּם דְּמַשְׁרְקִי.

What we learned in the mishna was specifically with regard to a case where one put out his straw and his hay, which are more likely to cause injury than fertilizer and other objects, because they are particularly slippery. Therefore, Rabbi Yehuda agrees that in this case he is liable to pay for damage they cause.

״כָּל הַקּוֹדֵם בָּהֶן זָכָה״. אָמַר רַב: בֵּין בְּגוּפָן בֵּין בְּשִׁבְחָן, וּזְעֵירִי אָמַר: בְּשִׁבְחָן אֲבָל לֹא בְּגוּפָן.

§ It is stated in the mishna that if one puts his straw and hay out in the public domain, whoever takes possession of them first acquires them. The Sages disagreed with regard to the extent of this acquisition. Rav says: He acquires them both with regard to the items themselves and with regard to the value of their enhancement, which took place while they were in the public domain. And Ze’eiri says: He acquires them with regard to the value of their enhancement but not with regard to the items themselves, and he must pay the owner of the straw according to their value at the time he placed them in the public domain.

בְּמַאי קָמִיפַּלְגִי? רַב סָבַר: קָנְסוּ גּוּפָן מִשּׁוּם שִׁבְחָן, וּזְעֵירִי סָבַר: לֹא קָנְסוּ גּוּפָן מִשּׁוּם שִׁבְחָן.

With regard to what do they disagree? Rav holds that the Sages penalized the owner by revoking his ownership of the items themselves due to the value of their enhancement that he stands to earn by putting them in the public domain, whereas Ze’eiri holds that they did not penalize him by revoking his ownership of the items themselves due to the value of their enhancement. Rather, he loses only the increase in their value due to their enhancement.

תְּנַן: הַהוֹפֵךְ אֶת הַגָּלָל בִּרְשׁוּת הָרַבִּים וְהוּזַּק בָּהֶן אַחֵר – חַיָּיב בְּנִזְקוֹ, וְאִילּוּ ״כָּל הַקּוֹדֵם זָכָה״ לָא קָתָנֵי!

The Gemara attempts to prove that Ze’eiri’s opinion is correct from a case where there is no enhancement at all. We learned in the continuation of the mishna that in the case of one who turns over dung in the public domain and another person incurred damage due to it, the former is liable to pay for his damage. But it does not teach in this clause that whoever takes possession of it first acquires it. Apparently the Sages did not revoke his ownership of the dung, as it has no enhanced value. This does not seem to accord with Rav’s opinion.

תְּנָא לְרֵישָׁא וְהוּא הַדִּין לְסֵיפָא.

The Gemara answers: The halakha that whoever takes possession of it acquires it is taught in the first clause, with regard to one who puts out straw, and the same is true in the last clause, with regard to one who turns over dung. It is unnecessary to repeat it. Therefore, no support for the opinion of Ze’eiri can be derived from here.

וְהָא תָּנֵי עֲלָהּ: אֲסוּרִין מִשּׁוּם גֵּזֶל!

The Gemara asks: But isn’t it taught in a baraita in that regard, i.e., a baraita that discusses the same cases as the mishna, that the hay and straw are forbidden due to the prohibition against robbery, which apparently means that one may not take possession of the dung, contrary to Rav’s opinion?

כִּי קָתָנֵי אֲסוּרִין מִשּׁוּם גֵּזֶל – אַכּוּלָּהּ מַתְנִיתִין קָאֵי, לְאוֹתוֹ שֶׁקָּדַם וְזָכָה.

The Gemara answers: When it is taught in the baraita that they are forbidden due to the prohibition against robbery, it applies to the entire mishna, not just to this particular clause, and it is referring to taking the items from the one who came first and acquired them. In other words, once someone takes possession of them, it is forbidden for anyone else to take them from him, as that is considered robbery.

וְהָא לָא קָתָנֵי הָכִי! דִּתְנַן: הַמּוֹצִיא תִּבְנוֹ וְקַשּׁוֹ לִרְשׁוּת הָרַבִּים לִזְבָלִים וְהוּזַּק בָּהֶן אַחֵר – חַיָּיב בְּנִזְקוֹ, וְכָל הַקּוֹדֵם בָּהֶן זָכָה, וּמוּתָּר מִשּׁוּם גֵּזֶל. וְהַהוֹפֵךְ אֶת הַגָּלָל לִרְשׁוּת הָרַבִּים וְהוּזַּק בָּהֶן אַחֵר – חַיָּיב, וְאָסוּר מִשּׁוּם גֵּזֶל!

The Gemara asks: But it is not taught in this manner elsewhere, as we learned in a baraita: In the case of one who takes out his straw and his hay to the public domain to use afterward as fertilizer and another person incurred damage due to them, he is liable to pay for his damage. And furthermore, whoever takes possession of them first acquires them, and is permitted to do so with regard to the prohibition against robbery. And in the case of one who turns over dung in the public domain and another incurred damage due to it, he is liable, but it is forbidden to take possession of it due to the prohibition against robbery.

אֲמַר רַב נַחְמָן בַּר יִצְחָק: גָּלָל קָרָמֵית? דָּבָר שֶׁיֵּשׁ בּוֹ שֶׁבַח – קָנְסוּ גּוּפוֹ מִשּׁוּם שִׁבְחוֹ, דָּבָר שֶׁאֵין בּוֹ שֶׁבַח – לֹא קָנְסוּ.

Rav Naḥman bar Yitzḥak said: Is it from the case of dung that you raise a contradiction to Rav’s opinion that one may take possession of straw and hay in the public domain? With regard to an item that has added value due to enhancement over time as a result of lying in the public domain, Rav holds that the Sages penalized one who leaves it in the public domain, revoking his ownership of the item itself because of its added value due to enhancement, but with regard to an item that does not have added value due to enhancement by lying in the public domain, such as dung, perhaps Rav concedes that they did not penalize him in this manner.

אִיבַּעֲיָא לְהוּ: לְדִבְרֵי הָאוֹמֵר קָנְסוּ גּוּפָן מִשּׁוּם שִׁבְחָן, לְאַלְתַּר קָנְסִינַן אוֹ לְכִי מַיְיתֵי שִׁבְחָא קָנְסִינַן?

A dilemma was raised before the Sages: According to the statement of Rav, who says that they penalized him by revoking his ownership of the items themselves because of its added value due to enhancement, do we impose this penalty immediately when he takes the straw out, allowing one to take possession of it even before it has time for its value to become enhanced, or do we impose the penalty only when its enhancement in value emerges?

תָּא שְׁמַע, מִדְּקָאַיְירִינַן גָּלָל.

Come and hear a proof that the penalty is imposed immediately from the fact that we spoke of a difficulty to Rav’s opinion from the case of dung, whose value does not become enhanced, indicating that according to Rav the penalty is imposed before there is any enhancement.

וְתִסְבְּרָא? כִּי אַיְירִינַן גָּלָל – מִיקַּמֵּי דְּלִשְׁנֵי רַב נַחְמָן, לְבָתַר דְּשַׁנֵּי רַב נַחְמָן מִי אִיכָּא לְמִירְמָא גָּלָל כְּלָל?!

The Gemara responds: And how can you understand this proof? When we spoke of dung, this was before Rav Naḥman bar Yitzḥak resolved the difficulty, explaining that perhaps Rav concedes that there is no penalty in this case. But after Rav Naḥman resolved it, is it at all possible to raise an objection to Rav’s opinion from the case of dung? Therefore, no proof can be brought from there.

לֵימָא כְּתַנָּאֵי: שְׁטָר שֶׁכָּתוּב בּוֹ רִבִּית – קוֹנְסִין אוֹתוֹ וְאֵינוֹ גּוֹבֶה לֹא אֶת הַקֶּרֶן וְלֹא אֶת הָרִבִּית, דִּבְרֵי רַבִּי מֵאִיר, וַחֲכָמִים אוֹמְרִים: גּוֹבֶה אֶת הַקֶּרֶן אֲבָל לֹא אֶת הָרִבִּית. לֵימָא, רַב דַּאֲמַר כְּרַבִּי מֵאִיר, וּזְעֵירִי דַּאֲמַר כְּרַבָּנַן?

The Gemara suggests: Let us say that this dispute is parallel to a dispute between tanna’im, as it is stated in a baraita: With regard to a document in which a loan with interest is written, we penalize the lender, and he therefore collects neither the principal nor the interest; this is the statement of Rabbi Meir. And the Rabbis say: He collects the principal but not the interest. Shall we say that Rav stated his opinion in accordance with the opinion of Rabbi Meir, whose penalty applies to the value of the loan itself due to its enhancement, i.e., the interest, which is prohibited, and that Ze’eiri stated his opinion in accordance with the opinion of the Rabbis, who impose the penalty only on the interest?

אָמַר לָךְ רַב: אֲנָא דַּאֲמַרִי אֲפִילּוּ לְרַבָּנַן. עַד כָּאן לָא קָאָמְרִי רַבָּנַן הָתָם – אֶלָּא קֶרֶן דִּבְהֶתֵּירָא, אֲבָל הָכָא קֶרֶן גּוּפָא קָמַזִּיק.

The Gemara answers that Rav could have said to you: I stated my opinion even according to the opinion of the Rabbis. The Rabbis were saying there that the principal is not forfeited by the lender only because the principal was loaned in a permissible manner, as the prohibition applies only to the interest. But here, in the case of one who put his straw in the public domain, the principal, i.e., the hazardous object itself, causes damage. Therefore, the penalty should relate to the object itself.

וּזְעֵירִי אָמַר לָךְ: אֲנָא דַּאֲמַרִי אֲפִילּוּ לְרַבִּי מֵאִיר. עַד כָּאן לָא קָאָמַר רַבִּי מֵאִיר הָתָם – אֶלָּא דְּמִשְּׁעַת כְּתִיבָה דַּעֲבַד לֵיהּ שׁוּמָא, אֲבָל הָכָא מִי יֵימַר דְּמַזִּיק.

And conversely, Ze’eiri could have said to you: I stated my opinion even according to the opinion of Rabbi Meir. The reason Rabbi Meir was saying there, in the case of a loan with interest, that the principal is also forfeited is only that the prohibition was already violated from the time of the writing of the document, by making an appraisal [shuma] of how much money is to be repaid, which included interest. But here, in the case of straw that one placed in the public domain, who can say that it will cause damage? Since the damage was not inevitable at the time that the straw was placed there, there is no justification for revoking the ownership of the straw itself.

לֵימָא כְּהָנֵי תַּנָּאֵי: הַמּוֹצִיא תִּבְנוֹ וְקַשּׁוֹ לִרְשׁוּת הָרַבִּים לִזְבָלִים וְהוּזַּק בָּהֶן אַחֵר – חַיָּיב בְּנִזְקוֹ, וְכָל הַקּוֹדֵם בָּהֶן זָכָה, וַאֲסוּרִין מִשּׁוּם גֵּזֶל. רַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל אוֹמֵר: כָּל הַמְקַלְקְלִין בִּרְשׁוּת הָרַבִּים וְהִזִּיקוּ – חַיָּיבִין לְשַׁלֵּם, וְכָל הַקּוֹדֵם בָּהֶן זָכָה, וּמוּתָּרִין מִשּׁוּם גֵּזֶל.

The Gemara suggests alternatively: Let us say that the dispute between Rav and Ze’eiri is parallel to a dispute between these tanna’im, as it is stated in a baraita: In the case of one who takes his straw and his hay out to the public domain to use afterward as fertilizer, and another incurred damage due to them, he is liable to pay for his damage. And whoever takes possession of them first acquires them, but they are forbidden due to the prohibition against robbery. Rabban Shimon ben Gamliel says: In the case of anyone who places obstacles in the public domain and they cause damage, he is liable to pay. And whoever takes possession of them first acquires them and they are permitted to him with regard to the prohibition against robbery.

הָא גּוּפָא קַשְׁיָא, אָמְרַתְּ כָּל הַקּוֹדֵם בָּהֶן זָכָה, וַהֲדַר קָאָמַר אֲסוּרִין מִשּׁוּם גֵּזֶל! אֶלָּא לָאו הָכִי קָאָמַר: וְכָל הַקּוֹדֵם בָּהֶן זָכָה – בְּשִׁבְחָן, וַאֲסוּרִין מִשּׁוּם גֵּזֶל – אַגּוּפָן, וַאֲתָא רַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל לְמֵימַר: אֲפִילּוּ גּוּפָן נַמִי כָּל הַקּוֹדֵם בָּהֶן זָכָה.

The Gemara clarifies: This matter itself is difficult. First you said that whoever takes possession of them first acquires them, and then it says that they are forbidden due to the prohibition against robbery, indicating that one may not take possession of them. Rather, is this not what the baraita is saying: This statement: And whoever takes possession of them first acquires them, is stated with regard to the value of their enhancement. And this statement: But they are forbidden due to the prohibition against robbery, is stated with regard to the items themselves? And Rabban Shimon ben Gamliel came to say that even with regard to the items themselves, whoever takes possession of them first acquires them. Therefore, this tannaitic dispute apparently relates to whether the penalty applies to the items themselves or just to the value of their enhancement.

לִזְעֵירִי וַדַּאי תַּנָּאֵי הִיא, לְרַב מִי לֵימָא תַּנָּאֵי הִיא?

The Gemara comments: According to Ze’eiri, it is certainly a dispute between tanna’im, since Rabban Shimon ben Gamliel explicitly deems it permitted for one to take possession of the items. According to Rav, shall we say that it is a dispute between tanna’im?

אָמַר לָךְ רַב: דְּכוּלֵּי עָלְמָא – קָנְסוּ גּוּפָן מִשּׁוּם שִׁבְחָן, וְהָכָא בַּהֲלָכָה וְאֵין מוֹרִין כֵּן קָא מִיפַּלְגִי. דְּאִתְּמַר, רַב הוּנָא אָמַר רַב: הֲלָכָה וְאֵין מוֹרִין כֵּן, רַב אַדָּא בַּר אַהֲבָה אָמַר: הֲלָכָה וּמוֹרִין כֵּן.

The Gemara responds that Rav could have said to you: According to all opinions, the Sages imposed a penalty revoking his ownership of the items themselves due to the value of their enhancement. And here in the baraita the tanna’im disagree with regard to whether or not it is ruled that this is the halakha but a public ruling is not issued to that effect, as it was stated that amora’im disagreed as to whether the halakha revoking his ownership of the items themselves should be taught to the public. Rav Huna says that Rav says: This is the halakha, but a public ruling is not issued to that effect. In other words, although it is permitted for one to take possession of the straw, halakhic authorities should not publicly rule that people may do so, lest people become accustomed to taking items that belong to others. This is the opinion of the first tanna in the baraita. Rav Adda bar Ahava says: This is the halakha and a public ruling is issued to that effect. This, Rav could have said, is the opinion of Rabban Shimon ben Gamliel.

אִינִי? וְהָא רַב הוּנָא אַפְקַר חוּשְׁלֵי, רַב אַדָּא בַּר אַהֲבָה אַפְקַר

The Gemara asks: Is that so? But didn’t Rav Huna declare dried barley [ḥushelei] that people laid out in the public domain ownerless? Similarly, didn’t Rav Adda bar Ahava declare ownerless