The Gem in Bava BAsra 27: says that the driver is higher. Yet in the case there, R'Yehuda is happy if the owner of the tree leaves a clearance high enough for the load to travel under it unimpeded. He says that the rider can bend over and thus everyone passes under it safely.
Yet in our Gem on 62: the Gem. requires a space of Gamal V'Rochvo! Why is this so? The damage here is dependant on the height of the load which is lower than the height of the rider! So let our Gem. say that the height should be 'Gamal Taun Pishtan' and not Gamal V'Rochvo?!
Kol Tuv and a Freilechen Purim.
alex lebovits, Toronto, CAnada
I have not found that the Mefarshim speak much about this so I will have to say my own ideas more.
(1) It seems to me that the sugya in Bava Kama and the sugya in Bava Basra are quiet different. Bava Kama is dicussing a scenario of potential danger and damage, whilst Bava Basra is referring to lack of convenience, or the lack of maximum usage of a public thoroughfare, but danger is not involved. The tree in Bava Basra is not dangerous because one can see it clearly and beware of it, but the problem is that because it is so lowlying, a camel and rider have trouble getting past. (So I would suggest ammending your phrase "passes under it safely" to "passes under it comfortably enough").
I can offer a slight proof for the above from Bava Basra end 60a which relates that Rav Yanai possessed a tree which leaned towards the public domain. This appears to be referring to exactly the same sort of tree that the Mishnah 27b mentions. If there would be a prohibition as such in possessing such a tree Rav Yanai would certainly not have transgreesed this. Furthermore the Gemara top 60b states that the reason Rav Yanai did not cut it down originally was because he thought the public liked the tree because they were able to sit in it's shade. It was only when that he saw that they opposed the tree, that he decide to cut it down. (See Rashash top 60b who writes that one sees from the above Gemara that one is not obliged to cut down the tree before the public protest).
[According to the above, I suggest that when the last Rashi on 60a writes that the canopies of the tree were damaging the camel and driver, this does not mean that they were literally damaging them, but because in effect they were preventing them use that road, this is considered that they were causing indirect damage.]
R. Yehuda maintains in Bava Basra that if the camel driver can bend down and pass under the tree this is sufficient to justify the behavior of the owner of the tree, because it is not cosidered a cumbersome way of having to travel on the road.
(2) According to the above we can also understand why the Gemara in Bava Kama uses the phrase Gamal v'Rochbo in connection with R. Yehuda but in Bava Basra it says Gamal Taun Pishtan. This is because in Bava Kama potential danger is involved so one would be required even according to R. Yehuda to leave a bit more space than occupied by the flax bundle. We would not rely on the camel driver bending down sufficiently every time, because occasionally he might not bend down enough and the result mught be a terrible fire. When it comes to pikuach nefesh R. Yehuda agrees that one requires the larger shiur.
Behatzlocha Rabah
Dovid Bloom
Reb Dovid Hello!
Thank you for your answers. I appreciate them. I'd like add some comments to your answers below.
R. Yehuda maintains in Bava Basra that if the camel driver can bend down and pass under the tree this is sufficient to justify the behavior of the owner of the tree, because it is not cosidered a cumbersome way of having to travel on the road.
But by the Chanukah Menoros, there would be a menorah by every household and if the driver would have to bend down by every house that he passes, this would indeed be a cumbersome way to travel! And it might even look like he's bending down NOT to look at them (similar to how one looks downwards not to look at an undesirable object. And then where is the Persuma Nisa?!) Thus even Reb Yehuda would require a space of Gamal Verochbo in BAva KAma.
(2) According to the above we can also understand why the Gemara in Bava Kama uses the phrase Gamal v'Rochbo in connection with R. Yehuda but in Bava Basra it says Gamal Taun Pishtan. This is because in Bava Kama potential danger is involved so one would be required even according to R. Yehuda to leave a bit more space than occupied by the flax bundle. We would not rely on the camel driver bending down sufficiently every time, because occasionally he might not bend down enough and the result mught be a terrible fire. When it comes to pikuach nefesh R. Yehuda agrees that one requires the larger Shi'ur.
My understanding (regarding your last 4 lines) was that a rider can make himself lower by bending over, but the pile always remains the same height wether he is bent down or not.
Thank you for the compliments as well. And have a Freilichen Purim!
Alex Lebovits
Dear Alex!
It only says it's a Mitzvah to put the candle in the street on Chanukah, not the camel in the street on Purim!(What would be the din if the camel got drunk and damaged the tree?!). Anyway I think camels worked harder - and bore taller loads - in the time of the Gemara.
(1) I found in the Mishnayos that there are different texts. The "Shinuy Nuscha'os" does cite a Girsa "Gamal v'Rochvo Over" so Baruch she'Kivanta!
(2) One of the Gedolim answered your contradiction between Bava Kama 62b and Bava Basra 27b by saying "Rochvo Hu ha'Pishtan veha'Zemoros." Maybe what he means to say is that when the Gemara says in Bava Kama "mi'Gamal v'Rochvo", the rider that R. Yehudah is referring to is not a human rider but the flax or the bunch of branches that are "riding" on the camel.
(3) A friend of mine found on a computer search in Otzar ha'Chochmah that your original question is asked by a Sefer called "Tzvi v'Chamid" by a Rabbi Tzvi Hirsh Rozanski. The interesting thing is that he was a Rabbi in Winnipeg. Before he went to Canada he received Semichah from the Netziv of Volozhin and learnt under the Beis Halevi.
(4) Tzvi v'Chamid answers that in Bava Basra if one would require the higher Shi'ur of Gamal v'Rochvo this would involve a loss to the owner of the tree because he would have to trim his branches. Therefore we prefer to say that he is only required to cater for the lower Shi'ur of Gamal Ta'un Pishtan and if a camel comes along with a rider we tell him he has to bend down a little. In contrast in Bava Kama if the Halachah is that one may place the Ner Chanukah over 10 Tefachim high, the owner of the candle will not lose anything if he places the candle higher than the bigger Shi'ur of Gamal v'Rochvo. Therefore even R. Yehudah agrees that we prefer to make the candle higher so as not to force the camel rider the bother of bending down. Tzvi v'Chamid suggests that one see from this Gemara the importance of not putting people to unnecessary trouble.
A Gut Voch
Dovid Bloom