Stipulations of Bet Din, and Stipulations of Yehoshua

I fell behind in translating the Rif, but am slowly catching up. And so recently translated the following, from the end of Bava Kamma:

הא דתניא דרבי ישמעאל ברבי יוחנן בן ברוקה אומר תנאי ב"ד הוא שיהא זה יורד לשדה חבירו וקוצץ סוכה של חבירו ומציל נחילו ונותן דמי סוכה מתוך נחילו

וכן תנאי ב"ד הוא שיהא זה מפרק את עציו ומציל פשתנו של חבירו ונוטל דמי עציו מתוך פשתנו של חבירו

וכן תנאי בית דין שיהא זה שופך את יינו ומציל דבשנו של חבירו ונוטל דמי יינו מתוך דבשנו של חברו

חזינן מאן דאמר הני כולהו הלכתא נינהו

ואנן לא סבירא לן הכי דקי"ל כמתני' דתנן אין לו אלא שכרו

וגרסי' נמי בס"פ מרובה בענין עשרה תנאין שהתנה יהושע

ותו ליכא

הא איכא הא דא"ר יהודה בשעת הוצאת זבלים אדם מוציא זבלו וצוברו כל ל' יום ברה"ר כדי שיהא נישוף ברגלי אדם וברגלי בהמה שע"מ כן הנחיל יהושע לישראל את הארץ

והא איכא הא דרבי ישמעאל בנו של רבי יוחנן בן ברוקה וכו'

ופרקינן דיחידאה לא קאמרינן דביחידאה לא קא מיירי דשמעת מינה הא דר' יהודה והא דר' ישמעאל בנו של ר' יוחנן בן ברוקה כולהו לאו הלכתא נינהו:

This that they learnt {in a brayta}:

Rabbi Yishmael the son of Rabbi Yochanan ben Beroka says: It is a stipulation of Bet Din that this one may descend to his fellow's field and cut off a bough that belongs to his fellow and thus save his swarm, and pay the amount of the bough from {the value of} his swarm. And so too, it is a stipulation of Bet Din that this one may unload his wood {from his donkey} and save his fellow's flax, and take the cost of his wood from the flax of his fellow. And so too, it is a stipulation of Bet Din that this one may pour out his wine {to have a container available} and save the honey of his fellow, and take the cost of his wine from the honey of his fellow.

We have seen one who said that all of these are the halacha. But we do not maintain this to be so, for we establish like our Mishna which taught "he only has his wages." And also, we learn in the end of perek Merubah {Bava Kamma 81b}:

There were ten stipulations which Yehoshua stipulated. And are there not more? Behold, there is that that Rabbi Yehuda said: At the time of the taking out of dung, a person may take out his dung and pile it up for a period of 30 days in the public domain such that it be trodden upon by the legs of people and the legs of animals, for on this condition Yehoshua gave over the land to Israel as an inheritance. And behold, there is that of Rabbi Yishmael the son of Rabbi Yochanan ben Beroka, etc.?!

And we answer that those which are positions of individuals we do not say {in the brayta}, for something which is of an individual we don't say. And we deduce from this that this of Rabbi Yehuda and this of Rabbi Yishmael the son of Rabbi Yochanan ben Beroka, all of them are not the halacha.

I don't think I agree with this assessment by Rif, and agree more with his bar plugta.

Now, it is true that the three statements by Rabbi Yishmael the son of Rabbi Yochanan ben Beroka seem related in message. And I agree that the following Mishna seems to argue against him. For the Mishna (in Bava Kamma 115) states:

IF ONE MAN WAS COMING ALONG WITH A BARREL OF WINE AND ANOTHER WITH A JUG OF HONEY, AND THE BARREL OF HONEY HAPPENED TO CRACK, AND THE OTHER ONE POURED OUT HIS WINE AND RESCUED THE HONEY INTO HIS [EMPTY] BARREL, HE WOULD BE ABLE TO CLAIM NO MORE THAN THE VALUE OF HIS SERVICES. BUT IF HE SAID [AT THE OUTSET], 'I AM GOING TO RESCUE YOUR HONEY AND I EXPECT TO BE PAID THE VALUE OF MY WINE,' THE OTHER HAS TO PAY HIM [ACCORDINGLY].

Whereas according to Rabbi Yishmael the son of Rabbi Yochanan ben Beroka, this would be an implicit stipulation. And that this is given as the stam Mishna seems to suggest that in this case, we do not rule like Rabbi Yishmael, but that he is merely a daas yachid.

However, looking at the gemara in 81b, the motivator is that the brayta on 80b - 81a mentioned precisely 10 stipulations of Yehoshua. And so one can object with other stipulations attributed to Yehoshua. And all this give seems to me to be the work of the setama digmara, which is expanding on the question and resolution on the next amud (82a), with the statement of Rabbi Avin citing Rabbi Yochanan, and the resolution Rabbi Geviha of Bei Ketil:

But did not R. Abin upon arriving [from Palestine] state on behalf of R. Johanan that the owner of a tree which overhangs a neighbour's field as well as the owner of a tree close to the boundary has to bring the first-fruits [to Jerusalem] and read the prescribed text as it was upon this stipulation [that trees might he planted near the boundary of fields and even overhang a neighbour's field] that Joshua transferred the land to Israel for an inheritance. [How then could R. Johanan describe this as a stipulation of Joshua when it was not included in the authoritative text of the Baraitha cited enumerating all the stipulations of Joshua?] — It must therefore be that the Tanna of [the text enumerating] the ten stipulations laid down by Joshua was R. Joshua b. Levi. R. Gebiha of Be Kathil explicitly taught this in the text: 'R. Tanhum and R. Barias stated in the name of a certain sage, who was R. Joshua b. Levi, that ten stipulations were laid down by Joshua.'

But I would assert that the setama was overzealous in his expansion of this idea and proferred answer. Because while all of them are indeed contradictions (as Rabbi Yishmael's stipulations of Bet Din are, as he concludes, rooted in stipulations of Yehoshua), the question was answered wonderfully on 82b, in terms of Rabbi Yochanan's statement. The answer is not that it is a daas yachid -- indeed, it appears that Rambam and Semag pasken like Rabbi Yochanan's statement. (I don't know about Rif; since it is not halacha lemaasah, his non-citation of it does not say anything.) Rather, this was just one version of Yehoshua's stipulations. And by accepting Rabbi Yochanan's statement as halacha (if we indeed do), then we are rejecting this version of the brayta that restricts it to ten; and then the question and answer in the shakla veTarya are unnecessary. And not only unncessary -- if they are indeed setammaitic, then the inclusion of this in the hava amina does not necessarily reflect what Ravina and Rav Ashi maintained about it.

One could still reject Rabbi Yishmael son of Rabbi Yochanan's single position, or three related positions, on the basis of its contradiction with a setam Mishna. And even say that this indeed indicates it is daas yachid. (Indeed, perhaps this is where the setama digmara got it from.) But the particular proof from the gemara on daf 81 I don't really agree with, as a forceful rejection.

This was all a surface exploration. I wonder who Rif's bar plugta is, and how this shapes up in later sources. This is a reminder to myself to try to look at this later.