Babylonian Talmud

Rodkinson 1918 — source 2, scan section 7

pit are counted in with it to complete the ten spans. R. Mordecai asked of Rabha: What is the law regarding one who threw a thing on a post ten spans high and four spans wide, standing in public ground ? Shall we assume that he is culpable because he removed the thing unlawfully and also deposited it unlawfully {i.e., from public ground into private), or that he is not culpable because the object which hghted on the post came from ground which is under no jurisdiction, being above ten spans from the ground ? (If the man had the intention to throw the object on top of the post, he must have thrown it high up into the air, and before lighting on the post it passed through space above ten spans from the ground, and that space is regarded as ground under no jurisdiction, therefore he is not culpable ?) Rabha answered: " This is explained in the Mishna." R. Mordecai then went to R. Joseph and asked the same question. He received the same answer: " It is explained in the Mishna." Thereupon he came to Abayi with the same question, and again received the same answer. Said R. Mor- decai to Abayi: "Do ye all spit with the same spittle?" Answered Abayi : Dost not thou think that the Mishna explains it ? Did not the Mishna say, " One who takes from or places upon" ? Rejoined R. Mordecai: " Perhaps the Mishna treats of a needle which can be placed on a level with the ten spans height." Said Abayi: " A needle must also be lifted above the level." Said R. Mordecai again: "It can be placed without being lifted above the level, because every stone has some crev- ices that are lower than the surface of the stone and the needle can be placed in one of the crevices." TRACT SABBATH. 197 R. Johanan propounded a question: "What is the law regarding a man who throws a cake of earth (four spans square and one span deep) into a pit exactly ten spans deep and four spans square ? Shall we say, that he is culpable because he threw the cake of earth into the pit, which was still ten spans deep and therefore private ground, or that he is not culpable because as soon as the cake reached the bottom of the pit it lessened the pit's height to nine spans, and thus made the pit unclaimed ground?" Let R. Johanan decide this question himself by what he said in the following Mishna: " If one throw a thing from a distance of four ells against the wall, and it strikes the wall at a height of over ten spans from the ground, he is free, but if below ten spans from the ground he is culpable, because one who throws a thing to the ground at a distance of four ells is culpable." We have investigated the case; how can he be culpable if the object thrown did not adhere to the wall ? And R. Johanan answered: " The case was one of a soft date, which did adhere to the wall." Now, if the conclusion is that the cake of earth lessened the depth of the pit, the date which adhered to the wall also lessened the distance of four ells from where the date was thrown, and he says that the man is culpable ? The answer was : In the case of the date the thrower did not intend that the date should adhere to the wall permanently, while in the case of the pit the cake of earth remained in the pit permanently, as intended by the thrower, Abayi said: If a man throw a mat into a pit ten spans deep and eight spans wide in public ground he is culpable. If he, however, placed the mat into the pit so that the pit was divided into two equal parts, he is not culpable. (The latter decree informs us of two facts : Firstly, that although the mat was placed in the pit, while the pit was still of sufificient size to con- stitute it private ground and was only diminished at the time the mat was placed into it, the man is not culpable, and secondly, that the mat takes up sufificient space to make the two pits caused by division less than four spans wide each.) Now, if, according to Abayi, it is a certainty that the mat is sufificient to nullify the enclosures necessary for the designation of private ground, so much the more is this the case with the cake of earth previously mentioned, but according to R. Johanan, to whom it is even questionable whether the cake of earth can produce that effect, surely a mat cannot. Abayi said again: If a man throw an object into a pit ten ipS THE BABYLONIAN TALMUD. spans deep and four spans wide, filled with water and standing in public ground, he is culpable, but if the pit was filled with fruit, he is not culpable; because water does not annul the en- closures necessaiy for the designation of private ground, while fruit does (the reason is that an object thrown into a pit of water falls to the ground in spite of the water [viz. : a stone or iron], while in a pit filled with fruit it rests on top).* We also learned the same in a Boraitha, in the name of R. Simeon: "Water does not annul the enclosures necessary for the designation of private ground." MISHNA: If one throw a thing (a soft date) from a distance of four ells against the wall, and it strike the wall at a height of over ten spans from the ground, he is free ; but if it strike the wall below ten spans from the ground, he is culpable ; because one who throws a thing to the ground at a distance of four ells is culpable. GEMARA: Said R. Jehudah, quoting Rabh in the name of R. Hyya: If one throw a thing at a distance of four ells against a wall, and the thing rested in a hole in the wall above ten spans from the ground, the law in his case is decided differently by R. Meir and the sages, viz. : R. Meir holds, that any object (like a hole) capable of being enlarged, must be looked upon as having been already enlarged, and therefore the man is culpable. The sages, however, hold that such is not the case ; everything must be regarded in its actual condition. R. Jehudah said in the name of Rabh: If a man throw a thing upon a sand-heap four ells wide and sloping up to a height of ten spans, he is culpable, provided the thing rested on the highest point of the heap, because the heap is regarded as being ten spans high in its entire length. The same we have learned in a Boraitha in the name of R. Hanina ben Gamaliel. MISHNA: If one threw an object within four ells (in public ground) and the object rolled to a greater distance, he is free ; if he threw a thing outside of four ells and it rolled back within four ells, he is culpable. GEMARA : Why should a man be culpable in the latter clause of the Mishna; the object thrown did not rest outside of four ells if it rolled back within the prescribed limit ? Said * So explains Rashi (Isaakides) ; we think, however, the reason that water does not annul the enclosures is, because water belongs to the public and any one can draw it out, and therefore it is equal to not bein^ there ; but, fruits must belong to a pri-