Siman 348

If one was standing in his courtyard and extended his hand full of fruit through a window or an entrance to the reshut harabbim—if he extended it unintentionally, he is permitted to return it; but if he extended it intentionally, he is forbidden to return it, for they penalized him that he should not return it but rather stand thus until it becomes dark. The penalty is because he began with a prohibition, for if he were to place them in the reshut harabbim, he would be moving from a reshut hayachid to a reshut harabbim; therefore they penalized him. And this is specifically when he extended it below ten, but above ten, this is not the airspace of the reshut harabbim, and even if he extended it by way of below—he is permitted to return it by way of above ten (Tosafot 3a, beginning with "Kan", see there). There is another resolution in the Gemara (3a) that if he extended it on Shabbat—they permitted him to return it, and if he extended it while it was still day—he is forbidden to return it. The reason is that in most cases it will be difficult for him to keep it thus until night and he will throw the fruit. Therefore, on Shabbat, when he throws he will come to a chiyuv chatat—they did not want to penalize him. But while it was still day, where even if he throws there will be no chiyuv chatat, since the akirah was not on Shabbat—they penalized him, and if he throws, what of it? (See Magen Avraham that "chiyuv chatat" is not exact, since he would be throwing intentionally, but rather a prohibition).

There is another resolution in the Gemara, and it is the final one, that they did not penalize at all, and it is permitted for him to return it. However, the permission is only to return it to that same courtyard in which he is standing, but if there is another courtyard adjacent to it - it is forbidden to return it so that his intention, which he intended to remove them from this courtyard, will not be fulfilled, for when he returns them to another courtyard, his intention is fulfilled, and we decree lest another time they permit them to the public domain. (Rashi 4a, s.v. "makhshavto" and see Tosafot ibid. s.v. "umai," who wrote that when the public domain separates between them, he is liable due to "passing" when they are on the same level, see there. And according to this, it is proven that they do not hold like what was written in siman 346, section 3, that "passing" is specifically to one's fellow, see there).

And this distinction applies only to an unintentional act, but in a case of intentionality, it is forbidden to return it even to that same courtyard. This is the wording of the Rambam in chapter 13, law 20: "If one forgot and extended his hand while it was full of fruit and took it out from this courtyard to bring it into the courtyard beside it, and he remembered before he brought it in while his hand was suspended in the airspace of the reshut harabbim—it is permitted to return it to himself to his courtyard. But to bring it into that second courtyard is forbidden, so that he does not fulfill his intention which he conceived at the time of his unintentional act. And if he took his hand out intentionally, it is forbidden to return it to himself; rather, they penalized him so that his hand shall remain suspended until it grows dark." Thus far his words. And he did not distinguish between while it is yet day and after it has grown dark, because he holds that the final established interpretation does not agree with the previous established interpretation. However, there are those who disagree on this and hold that after it has grown dark they did not penalize, for the reason we explained in section 1, and our teacher, the Beit Yosef, brought both opinions. And it is simple that the Rambam is dealing with below ten handbreadths, and this is as he mentioned explicitly, for he wrote "suspended in the airspace of the reshut harabbim," and there is no reshut harabbim above ten. And so wrote the Tur and the Shulchan Aruch; see there.

However, from the words of the Rambam it is explained that this is specifically when his intention was to bring it into the courtyard that is at its side, for in this case it is relevant to say his thought was fulfilled. But from Rashi it is not explained so, and he interprets "his thought was fulfilled" as meaning that he intended to remove them from this courtyard, see there; and so it is explained from the words of the Tur and the Shulchan Aruch. Our teacher, the Beit Yosef, wrote: "In what case are these things said? When he took it out to the reshut harabbim. But if he took it out to a karmelit, it is permitted to return it in all manners." Thus far his words. For if not so, it would be a decree upon a decree. (Beit Yosef) And specifically in a case of shogeg, but in a case of mezid, where the reason is due to a penalty, they penalized him even in a karmelit. (Magen Avraham) And from Tosafot there it is implied that they decreed even in a case of shogeg and in a karmelit, see there. (And so it is implied from the resolution of the Gemara, "here it is while it is still day," and behold in such cases there is no Torah prohibition, and nevertheless they penalized; and see Magen Avraham subsection 3 and examine carefully).

The Rambam wrote (ibid.): "One who intends to throw eight amot in the reshut harabim and the object came to rest at the end of four—he is liable, for the measure of the melakhah was performed and his intention was fulfilled, as it is a known matter that this object does not reach the end of eight until it passes over every single place of all the eight. But if he intended to throw four and threw eight, such that the object came to rest at the end of eight—he is exempt, because it came to rest in a place where he did not intend for it to pass, and all the more so for it to rest. Therefore, if he intended at the time of throwing that the object should rest in any place it wishes—he is liable." Thus far his words. And according to the version of Rashi and his commentary (97b, s.v. 've-lav haynu'), even in a case where he intended to throw eight and threw four—he is exempt, unless he said 'wherever it wishes, let it rest,' for he intended that it rest specifically at the end of eight; see there. And the Rambam holds that this is not a matter of strictness, since it passed the end of four. And perhaps even according to the Rambam, there is no liability unless it passed within three [tefachim] close to the ground, which is considered as if it has come to rest, but the Rambam requires even within three a resting upon something, as he wrote there. And the opinion of Rav Hai Gaon is like Rashi, of blessed memory (Maggid Mishneh).

He further wrote: "If one threw into four amot and it rolled outside of four amot—he is exempt. If one threw outside of four amot and it rolled into four amot, if it rested upon something outside of four amot and afterwards rolled and entered into four amot—he is liable, and if it did not rest at all—he is exempt." Thus far his words. And so too if the wind caught it for a moment, it is as if it rested upon something. (Gemara 100a. And see Maggid Mishneh what he wrote in the name of the Rashba, and it requires further study).