{
"title": "English Explanation of Mishnah Bava Batra",
"language": "en",
"versionTitle": "merged",
"versionSource": "https://www.sefaria.org/English_Explanation_of_Mishnah_Bava_Batra",
"text": {
"": [
[
[
"Introduction
The first mishnah of Bava Batra deal with neighbors who share a courtyard. The mishnah is concerned with the building of a wall to separate the neighbors and with the ability of one neighbor to force the other neighbor to share the costs of building the wall.",
"Mishnah One
1)\tIf two partners wish to make a partition in a courtyard they build the wall in the middle.
2)\tIn a place where the custom is to build of unshaped stones, or of hewn stones, or of half-bricks, or of whole bricks, so they should build it—everything is according to local custom.
a)\t[If the wall is made of] unshaped stones this one supplies [from his property] three handbreadths, and this one supplies [from his property] three handbreadths.
b)\t[If the wall is made of] hewn stones this one supplies [from his property] one and a half handbreadths, and this one supplies [from his property] one and a half handbreadths.
c)\t[If the wall is made of] half-bricks this one supplies [from his property] two handbreadths, and this one supplies [from his property] two handbreadths.
d)\t[If the wall is made of] whole bricks this one supplies [from his property] one and a half handbreadths, and this one supplies [from his property] one and a half handbreadths.",
"Explanation
In the time of the mishnah most homes did not have openings to the street but rather would open onto a common courtyard. The courtyard was used for all sorts of purposes and was the common property of the owners of the houses surrounding it. Our mishnah states that if the two partners wish to build a wall separating the courtyard they should build the wall in the middle and when they do, they should build the wall with the materials customary used in their place. There are four kinds of building materials mentioned in the mishnah, and the mishnah lists each one.
Clauses 2a through 2d all state how much of a person’s property he should allocate for the thickness of the wall. This space will depend on the thickness of the building materials. Unshaped stones are (on average) 6 handbreadths wide and therefore each partner must allocate three handbreadths of his property for the building of the wall. Hewn stones are only 3 handbreadths wide and therefore each partner allocates one and a half handbreadths. A whole brick is 3 handbreadths wide, and therefore each partner allocates one and a half handbreadths. Half bricks are one and half handbreadths wide. In order to make a wall with them they would use two half-bricks, placing mortar in between the two. The total width of the wall would be four handbreadths, and therefore each partner would allocate two handbreadths.",
"Questions for Further Thought:
•\tMishnah one: If one partner wished to build with half-bricks and one partner with whole bricks, and the custom of the land was to use hewn stone, what type of wall should they build?
•\tWhat laws in modern society are similar to these types of laws? How are they different?
If two partners wish to make a partition in a courtyard they build the wall in the middle.
In a place where the custom is to build of unshaped stones, or of hewn stones, or of half-bricks, or of whole bricks, so they should build it everything is according to local custom. [If the wall is made of] unshaped stones this one supplies [from his property] three handbreadths, and this one supplies [from his property] three handbreadths. [If the wall is made of] hewn stones this one supplies [from his property] one and a half handbreadths, and this one supplies [from his property] one and a half handbreadths. [If the wall is made of] half-bricks this one supplies [from his property] two handbreadths, and this one supplies [from his property] two handbreadths. [If the wall is made of] whole bricks this one supplies [from his property] one and a half handbreadths, and this one supplies [from his property] one and a half handbreadths.
The first mishnah of Bava Batra deal with neighbors who share a courtyard. The mishnah is concerned with the building of a wall to separate the neighbors and with the ability of one neighbor to force the other neighbor to share the costs of building the wall.
In the time of the mishnah most homes did not have openings to the street but rather would open onto a common courtyard. The courtyard was used for all sorts of purposes and was the common property of the owners of the houses surrounding it. Our mishnah states that if the two partners wish to build a wall separating the courtyard they should build the wall in the middle and when they do, they should build the wall with the materials customary used in their place. There are four kinds of building materials mentioned in the mishnah, and the mishnah lists each one.
Clauses 2a through 2d all state how much of a person’s property he should allocate for the thickness of the wall. This space will depend on the thickness of the building materials. Unshaped stones are (on average) 6 handbreadths wide and therefore each partner must allocate three handbreadths of his property for the building of the wall. Hewn stones are only 3 handbreadths wide and therefore each partner allocates one and a half handbreadths. A whole brick is 3 handbreadths wide, and therefore each partner allocates one and a half handbreadths. Half bricks are one and half handbreadths wide. In order to make a wall with them they would use two half-bricks, placing mortar in between the two. The total width of the wall would be four handbreadths, and therefore each partner would allocate two handbreadths."
],
[
"The same is true with a garden: in a place where the custom is to build a fence, they can obligate him to do so. However, in a valley, where it is not customary to build a fence, they cannot obligate him to do so.
But if he wants to [build a fence] he must gather into his own portion and build, and he puts a finishing on the outside of the wall. Therefore if the wall falls, the place and the stones belong to him.
If they acted with each other’s consent, they should build the wall in the middle and put a finishing on both sides. Therefore if the wall falls, the place and the stones belong to them both.
Mishnah two is a continuation of mishnah one. It continues to discuss the procedures for building a wall to separate property.
Mishnah two begins by comparing a garden to a courtyard. The mishnah states that a garden is similar to a courtyard in that if it is customary to build there a fence, one partner can force the other to share in the costs and allocated space. However, in section 1a we learn that a valley is different. Since it is not customary to build there a fence, neither can force the other to do so. If one partner wishes in any case to make a fence he must do it in his own area and put a finishing on the wall so that it will it will not look unfinished nor ugly in the eyes of the one who did not want a fence, nor will it be rough and potentially damage the other person’s animals. Since he has built the wall on his own property and he alone paid for it, if the wall should fall, both the place and the materials belong to him. If however, the two partners built the wall together and shared in its costs and space, they should finish both sides of the wall. If the wall should fall they will share the space and the materials.
[Please note that I explained the idea of “finishing the wall” according to Albeck’s explanation and not the explanation given in the Talmud.]"
],
[
"Introduction\nMishnah three discusses a person who builds a fence partially around another person’s property and wishes that person to share in the costs of the fence.",
"If a man’s land surrounded his fellow’s land on three sides, and he fenced it on the first and the second and the third sides, they do not obligate him [to share in the costs]. Rabbi Yose says: “If he rose a built a fence on the fourth side, they obligate him to share in all of the costs.” In the scenario discussed in this mishnah Reuven owns three fields which surround Shimon’s fields on three of its four sides. If Reuven were to fence in all three of his fields he would have built a fence around three sides of Shimon’s fields. Since this fence does not totally surround Shimon’s field, Reuven cannot claim that Shimon benefited from the field and should therefore share in the costs. Rabbi Yose adds that if Shimon were to fence in four sides, he would thereby show that he wished to have his field fenced in. In that case he is obligated to share in the costs of all of the fences, since he now benefits from them all.",
"Questions for Further Thought:
• If Reuven owns fields surrounding all four sides of Shimon’s field and he puts a fence around all of them, will Shimon have to share in the costs?"
],
[
"If the wall of a courtyard fell down they obligate each of the partners to help in building it up to a height of four cubits. He is presumed to have paid [his share] unless the other brings proof that he has not paid.
[If the fence was built] four cubits or higher, they do not obligate him [to help in building it.] If [the one who did not contribute] built another wall near it, even if he did not put a roof upon it, they obligate him to share in all of the costs. He is presumed not to have paid [his share] unless he brings proof that he has.
Mishnah four continues to discuss a wall built in a courtyard owned by two partners, a topic that began in the first mishnah of the chapter.
In the times of the mishnah, a standard wall, built in a courtyard was about four cubits high (over two meters, a little less than seven feet). Therefore, if the previous wall fell down, each partner would be obligated to rebuild the wall until it was four cubits high. If Reuven claims that Shimon did not pay his share, Reuven must bring proof. Since this law is commonly known, we assume that Reuven would not have begun to build the wall until Shimon paid his share. If he did build the wall without first collecting, he must bring proof that Shimon still owes him money.
In contrast, if Reuven built the wall over four cubits, he cannot ask Shimon to pay for the costs of the added height. Since walls are not commonly built over four cubits high, Shimon can claim that he did not want such a high wall. If however, Shimon were to use the wall to support another wall, and show that he intended to lay a roof on the two walls, he must pay for the added height. Although he was not initially obligated, since he subsequently used the wall, he is obligated to pay for it. Since this law is not commonly known, we cannot assume that Shimon paid his share. Until he brings a receipt showing that he has paid for the wall, he will still be obligated towards Reuven."
],
[
"They compel [a partner in a courtyard to contribute to] the building of a gate-house and a door for the courtyard. Rabban Shimon ben Gamaliel says: “Not all courtyards are fit for a gate-house.”
They compel [a resident of the town to contribute to] the building of a wall for the town and double doors and a bolt. Rabban Shimon ben Gamaliel says: “Not every town is fit for a wall.”
How long must a man dwell in a town to count as one of the men of the town? Twelve months. If he has purchased a dwelling place he immediately counts as one of the men of the town.
Mishnah five deals with the obligation of a person who shares a courtyard with another to help in building certain parts of the courtyard. The second half of the mishnah deals with the obligations that residents of a town have to participate in the costs of building the public structures in the town.
Section one teaches that a person who holds joint possession of a courtyard can be compelled to share in the costs of building a gate-house (where a guard would sit and protect the homes attached to the courtyard) and a door. Since these are necessities of a courtyard, one must participate in their cost. Rabban Shimon ben Gamaliel points out that not all courtyards need a gate-house. Assumedly smaller courtyards can be protected without building a gate-house. Therefore, a person would be obligated to help pay for building a gate-house only as long as the courtyard was fit for one.
Section two discusses similar laws with regards to people who live in a town. Just as in modern society people pay taxes in order to pay for the building and upkeep of town property, so too in the times of the Mishnah people had to jointly pay for the building of a wall, double-doors and a bolt to help protect the town. Again Rabban Shimon ben Gamaliel points out that not all towns are fit for walls. If the town was not a one which would usually have a wall, the residents are not obligated to share in its costs.
Finally, section three discusses how long a person must dwell in the town in order to be an official resident and thereby be obligated to pay for building its wall. There are two criteria. First of all, if he dwells in the town for twelve months he is obligated to pay. Second, if he purchases property in the town, he is immediately obligated, even if he doesn’t dwell there."
],
[
"They do not divide a courtyard until there is four cubits for this [partner] and four cubits for this [partner].
Nor [do they divide up] a field until it has nine kavs for this [partner] and nine kavs for this [partner]. Rabbi Judah says: “Until it has nine half-kavs for this [partner] and nine half-kavs for this [partner].
Nor [do they divide up] a garden until it has a half-kav for this [partner] and a half-kav for this [partner]. Rabbi Akiva says: “A quarter-kav.”
Nor [do they divide up] an eating hall, a watch-tower, a dovecote, a cloak, a bathhouse, or an olive-press until there is sufficient for this [partner] and for this [partner].
This is the general rule: whatever can be divided and still be called by the same name, they divide; otherwise they do not divide.
When is this so? When they do not both wish [to divide the property]. However, if both wish they can divide it even if it is smaller. And with regards to the Sacred Books, they may not be divided even if both are willing.
Mishnah six returns to discuss a subject which began in mishnah one. There we learned the laws of building walls in shared courtyards, gardens and valleys. Mishnah six discusses which jointly-owned properties can be split into two parts.
This mishnah is quite straightforward so we will explain it briefly. Sections four and five basically summarize the laws of splitting jointly held property. One partner can force another partner to split the property only if the remaining property will still be sufficiently large to use it for its intended purpose. For instance if partners jointly own a dovecote (a place for breeding and storing pigeon doves) and one partner wants to split it, there must be enough room in each half for both partners to use it as a dovecote. Furthermore, section five clarifies that each half must be able to be called by its previous name. For example, if partners owned a truck one could not force the other to take half of the truck, since half a truck is worthless. If, however, partners owned an iron mine, one could force the other to take half, as long as each half was large enough to be an iron mine in its own right. The first three sections of our mishnah give concrete sizes with regards to courtyards, fields and gardens, but the principle applied is basically the same as that in sections four and five.
Section six emphasizes that the first five sections are true only as long as one partner does not agree to split the property. If, however, both parties agree to split the property they can split an even smaller piece. The one exception to this rule are scrolls containing the books of the Bible. It would not be respectful to the Sacred Books to cut a scroll in half. If, however, the books are in separate scrolls partners could divide them. [Note, in the time of the Mishnah all books were written in scroll form. The modern codex was not yet invented.]"
]
],
[
[
"One may not dig a cistern near his fellow’s cistern;
Nor may he dig a ditch, cave, water-channel, or laundry pool unless it is three handbreadths away from his fellow’s wall, and he must plaster it with lime.
They distance piles of olive refuse, manure, salt, lime or stones three handbreadths from his fellow’s wall, and he plasters it with lime.
They distance seeds, and a plow and urine three handbreadths from the wall.
And they distance the mill [from the wall]: three [handbreadths] from the lower millstone and four [handbreadths] from the upper millstone.
And [they distance] the oven [from the wall]: three from the belly of the oven and four from the rim of the oven.
Most of the second chapter of Bava Batra deals with the obligations to distance damaging things from another person’s property. Mishnah one deals with distancing things from a person’s wall lest they damage the wall.
Section one states that a person should not dig a cistern close to another person’s cistern since one cistern may cause the other to break. A cistern is where they would store collected rain water, as opposed to a well which collects water from underground.
The remainder of the mishnah deals with distancing things from another person’s wall, lest they cause damage to the wall. The items mentioned in section two may cause the wall to fall, therefore he must distance them three handbreadths and plaster them to prevent water from seeping out.
The items mentioned in section three also may cause damage to another person’s wall and therefore he must distance them and plaster the place in which he places them.
Section four deals with three more items which also must be kept three handbreadths away from another person’s wall: seeds, a plow and urine. The difference between these items and those mentioned previously is that plastering is not applicable in these cases.
Sections five and six mention large items, a mill and an oven which also must be distanced from another’s wall. In both of these cases there are different measurements given for different parts of the item."
],
[
"Introduction\nMishnah two deals with placing an oven or other cooking device in a house in a fashion that will not cause damage to the house.",
"One may not set up an oven inside a house unless there is a space of four cubits above it. If he sets it up in the upper room, the flooring beneath it must be three handbreadths deep, or for a stove one handbreadth. Section one sets up specifications for placing an oven or a stove inside a house, either on the first floor or on the second floor (the upper room). Note that a stove causes less heat than an oven.",
"And if it causes damage [to the floor] he must pay for the damage caused. Rabbi Shimon says: “They only mentioned these measurements so that if the object caused damage he would be exempt.” Section two contains a dispute between the anonymous opinion and Rabbi Shimon with regards to the ramifications of the distances mentioned in this and the previous mishnah. According to the first opinion, while a person must observe these restrictions, even if he does so he will still be obligated to make restitution if his property damages someone else’s property. According to Rabbi Shimon, if one follows the restrictions, and properly distances his potentially damaging property from another person’s property, he will be exempt if it causes damage.",
"Questions for Further Thought:
• According to the anonymous opinion is section 2, even if a person properly distances his damaging things from another’s property he will still be obligated for subsequent damages. Why then does the mishnah mention how far these mentioned things must be distanced?"
],
[
"Introduction\nMishnah three discusses types of professions or businesses that a person can or cannot have in his home or near his home lest they disturb his neighbor.",
"One may not open a bakery or a dyer’s shop under his fellow’s storehouse, nor a cattle stall. In truth, they have permitted these things under a winestore but not a cattle stall. A bakery, a dyer’s shop, and cattle stall, if placed underneath a storehouse of produce will damage the produce. The bakery and dyer’s shop will produce heat, which can be damaging to the fruit, and the stench of the cattle stall will, for obvious reasons, also damage the fruit. However, as we learn in section 1a, if the storehouse was for wine, one can place a bakery or dyer’s shop underneath, since the wine will improve due to the heat. However, the stench of the cattle stall will not improve the taste of the wine! (Yuk)",
"A man may protest against [another that opens] a shop within the courtyard and say to him, “I cannot sleep because of the noise of them that go in and out.” As we have learned on several occasions, in the time of the mishnah a courtyard was usually shared between several neighbors. If one’s neighbor began to sell his wares in the courtyard the other neighbors could protest against the noise pollution caused by the customers.",
"One who makes utensils, should go outside and sell them in the market. But none may protest and say to him, “I cannot sleep because of the noise of the hammer” or “because of the noise of the mill-stones” or “because of the noise of children.” Section three is a continuation of the subject began in section two. A utensil maker is allowed to make his utensils in the courtyard, even though the hammer will cause noise pollution. He must, however, sell them in the market, as we also learned in the previous section. Similarly, a person can grind flour in the courtyard but he must sell it in the market. Finally, a teacher may bring students into the courtyard to learn, even though they will make much noise.",
"Questions for Further Thought:
• Why does the mishnah allow one to bring students into a courtyard even though it will cause noise pollution?"
],
[
"Introduction\nMishnah four discusses how far a person must distance his wall from his neighbor’s walls.",
"If one’s wall was adjacent to his friend’s wall he may not build another wall adjoining it unless it is at a distance of four cubits. If a person already owns a wall adjacent to his friend’s wall, he may wish to add another wall, thereby creating a three walled structure. If he wishes to do that he must leave four cubits between the new wall and his friend’s wall in order that people will walk near his friend’s wall. It was believed that people walking near a wall would strengthen the foundations of the wall. If he didn’t leave enough room next to his friend’s wall people would not walk there, thereby depriving his friend of that benefit.",
"And [if he builds a wall opposite his friend’s] windows, whether it is higher or lower than them or level with them, it may not be within four cubits. If a person wishes to build a wall opposite another person’s windows he must fulfill three conditions: 1) If the wall is higher than the window it must be more than four cubits higher so that he will not be able to use his wall to look into his friend’s window. 2) If the wall is lower than the window it must be more than four cubits lower so that he will not be able to stand on the wall and look into the window. 3) If it is across, it must be four cubits away so that it will not block the light going into the other window.",
"Questions for Further Thought:
• Why is the mishnah so concerned with people looking into other people’s windows? What does this teach us about privacy?"
],
[
"Introduction\nThe mishnah which we will learn today deals with rules regarding a dovecote. A dovecote is a structure used to house pigeons. In the time of the mishnah pigeons were used for food, sacrifices and as messengers.",
"A person’s ladder must not be kept within four cubits of [his neighbor’s] dovecote, lest a marten (a small animal that eats should jump in. His wall may not be built four cubits from [his neighbor’s] roof-gutter, so that the other can set up his ladder [to clean it out]. In section one we learn that a person may not place a ladder in his property that will be less than four cubits from his neighbor’s dovecote lest an animal use the ladder to jump to the pigeon’s nesting places and eat them. Through this mishnah we learn an important principle: a person is not allowed to do something on his property if it will cause damage on another person’s property. Similarly, in section 1a, we learn that if a person wishes to build a wall on his property he must leave four cubits between the wall and the other person’s wall, if the other person’s wall has a gutter on it. As in modern times, so too in the time of the Mishnah gutters were used to drain water from the roof. In order to fix the gutters, which would often become clogged with debris, one would need to stand a ladder next to the wall. The four cubits between the walls would allow the person to stand a ladder and thereby fix his rain gutter.",
"A dovecote may not be kept within fifty cubits of a town, and none may build a dovecote in his own domain unless his ground extends fifty cubits in every direction. Rabbi Judah says: Four kor’s space of ground, which is the length of a pigeon’s flight. But if he had bought it [and it was built already in that place] and there was only a quarter-kab’s space of ground, he has a right to the dovecote. Section two continues to discuss some rules governing dovecotes. According to the anonymous opinion in section two one must not place a dovecote within fifty cubits of the town nor within fifty cubits (25 meters) of his neighbor’s property. The reason to distance the dovecotes from the town is so that the pigeons will not eat the seeds in another person’s garden or the seeds that were drying on people’s roofs. The reason to distance the dovecotes from another person’s property is so that they won’t eat from the other people’s fields. Rabbi Judah disagrees with the distance of fifty mentioned by the anonymous opinion. According to him one must distance the dovecote from another’s property by a field big enough to grow four kor’s of wheat. This amount equals about 274 cubits in each direction, or about 150 meters. Finally we learn in section 2b that if a person bought a dovecote that was not properly distanced from another person’s property, he need not move the dovecote, even if it is only ¼ kav’s space of ground, which is about 10 cubits [five and a half meters] away from the other person’s property.",
"Questions for Further Thought:
• Is there a contradiction between sections one and two of this mishnah? If so, what is the potential contradiction and how can it be solved?"
],
[
"Introduction\nToday’s mishnah continues to deal with dovecotes.",
"If a young pigeon is found within fifty cubits it belongs to the owner of the dovecote; but if it is found beyond fifty cubits it belongs to he finds it. If it is found between two dovecotes: if it is nearer to this one than it belongs him [that owns this dovecote]; and if it is nearer to the other, it belongs to him [that owns the other dovecote]; and if it is at a like distance from either, they share it. This mishnah is a simple mishnah dealing with pigeons that are lost. If one finds a pigeon fifty cubits from a dovecote, one can assume that it belongs to the owner of that dovecote. If it is further than fifty cubits, one need not make that assumption and one may keep the pigeon. If it is found between two dovecotes it is assumed to belong to the owner of the nearest dovecote. If it is equidistant between the two, the two owners will split the value of the pigeon.",
"Questions for Further Thought:
• This mishnah deals with a topic that was discussed in the second chapter of Bava Metzia, lost items. Why then is this mishnah in our chapter and not there? What does this tell us about the organizational pattern of the Mishnah?"
],
[
"Introduction\nMishnah seven deals with distancing trees from the city. In modern times we think of trees as beautifying a city. However, in ancient times trees were not commonly found inside the city itself. Furthermore, it was considered aesthetic for there to be empty fields surrounding the city.",
"According to the anonymous opinion in section one, a regular tree must not be grown within a distance of twenty five cubits from the city, nor a carob or sycamore tree within fifty cubits. Since carob and sycamore trees have thick branches, they must be kept further away. Abba Shaul, section 1a, distinguishes between fruit and non-fruit bearing trees. Non-fruit bearing trees must be kept fifty cubits away, and assumedly, fruit bearing trees can be planted closer, as was stated in the previous clause.",
"If the town was there first, the tree shall be cut down and no compensation given; if the tree was there first it shall be cut down and compensation given. If it is in doubt which was there first, the tree shall be cut down and no compensation given. In section two we learn that if the offending tree was planted before the town was built, the tree will still be cut down, but compensation will be given to its owner. If the city was built first, the tree is cut down and no compensation is given. Since it was planted illegally, the owner does not get compensation when it is uprooted. Finally, if we are unsure which existed first, the town or the tree, no compensation is given, since as we have learned many times, in Jewish law the burden of proof is on the plaintiff. In this case the tree owner is the plaintiff suing the city for compensation. If he cannot bring proof that his tree existed before the city, he does not receive compensation.",
"A tree may not be grown within a distance of twenty five cubits from the town, or fifty cubits if it is a carob tree or a sycamore tree. Abba Shaul says: “Any tree that bears no fruit may not be grown within a distance of fifty cubits.” If the town was there first, the tree shall be cut down and no compensation given; if the tree was there first it shall be cut down and compensation given. If it is in doubt which was there first, the tree shall be cut down and no compensation given.
A permanent threshing floor may not be made within fifty cubits of the town. Sections one and two state that a threshing floor may not be placed less than fifty cubits from another person’s property or from the town. The reason for this prohibition was explained in the introduction.",
"One may not make a permanent threshing floor within his own domain unless his ground extends fifty cubits in every direction. And he must distance it from his fellow’s plants and ploughed land so that it will not cause damage. Section 2a also restricts a person from placing a threshing floor close to his neighbor’s plants or ploughed land. Again, the chaff can be damaging to plants and can spoil ploughed land.",
"Questions for Further Thought:
• Why does Abba Shaul allow fruit bearing trees to be planted closer to the town?"
],
[
"Introduction Mishnah eight deals with distancing a threshing floor from the city. A threshing floor was the place where farmers would bring their harvested wheat in order to separate the kernels of wheat from the chaff. A threshing floor would produce much waste, as the chaff is thrown to the wind. In order to prevent the chaff from polluting the city the mishnah discusses how far away the threshing floor must be kept.",
"A permanent threshing floor may not be made within fifty cubits of the town. One may not make a permanent threshing floor within his own domain unless his ground extends fifty cubits in every direction. The Mishnah states that a threshing floor may not be placed less than fifty cubits from another person's property or from the town. The reason for this prohibition was explained in the introduction. ",
"And he must distance it from his fellow's plants and ploughed land so that it will not cause damage. The Mishnah restricts a person from placing a threshing floor close to his neighbor's plants or ploughed land. Again, the chaff can be damaging to plants and can spoil ploughed land."
],
[
"Introduction\nMishnah nine deals with distancing foul-smelling things from a town.",
"Animal carcasses, graves and tanneries must be distanced fifty cubits from a town. A tannery may be set up only to the east of a town. Rabbi Akiva says: “It may be set up on any side save the west, and it must be distanced fifty cubits [from the town]. The three things listed in section one, animal carcasses, graves and tanneries will potentially give off foul smells. Therefore one had to make sure these things were kept at least fifty cubits from the town. Furthermore, since a tannery smells so bad, it may only be set up to the east of the town. Since easterly winds were not common in the Land of Israel, the tannery needed to be kept to the east so its smell would not be blown into the town. Rabbi Akiva said that the tannery could also be to the north or south of the town, just not to the west.",
"Questions for Further Thought:
• What is the relationship of Rabbi Akiva’s opinion to the anonymous opinion? Upon what does he agree and upon what does he agree?"
],
[
"Introduction\nMishnah ten deals with distancing foul-smelling things from foods which might be ruined due to the smell.",
"A pool for soaking flax must be distanced from vegetables, and leeks from onions, and mustard plant from bees. Rabbi Yose permits mustard plant. This simple mishnah lists things that will spoil other things if kept near them and therefore must be distanced from them. [Note: part of the processing of flax, a major material for clothing, was soaking it in water].",
"Questions for Further Thought:
• Why does mishnah ten come after mishnah nine?"
],
[
"Introduction\nMishnah eleven deals with distancing trees from cisterns lest the roots break the underground walls of the cisterns.",
"A tree may not be grown within twenty five cubits of a cistern, or within fifty cubits if it is a carob or a sycamore, whether it is higher or on the same level. Section one prohibits one from planting a tree either twenty five or fifty cubits, depending on the type of tree, from another’s cistern lest the roots damage the cistern. This is true whether the tree is on higher or equal ground to the cistern.",
"If the cistern was there first the tree shall be cut down and compensation given. If the tree was there first it shall not be cut down. If it is in doubt which was there first, the tree shall not be cut down. Rabbi Yose says: “Even if the cistern was there before the tree it should not be cut down, since this one dug within his own domain and the other planted within his own domain.” Section two deals with the consequences of a tree that was planted closer than twenty five or fifty cubits. If the cistern was there first, the tree must be cut down, but the owner will receive compensation. Even though he was not supposed to plant there, it is still his property and therefore he is paid for the loss of the tree. However, the cistern owner can at least take the initiative and force him to remove his tree. If, however, the tree was there first, the owner of the cistern cannot even force the tree owner to remove the tree. If it is unclear which is there first, the tree is not removed. Rabbi Yose has a different opinion. According to him, so long as each person’s activities are confined to his property, the other cannot force him to remove the potentially offending object, in this case a tree. Rabbi Yose is what we might in our time call a right to privacy advocate.",
"Questions for Further Thought
• In mishnah seven we discussed a similar issue to this mishnah. What are the differences between the two mishnayoth and why do you think they exist?"
],
[
"Introduction\nMishnah twelve deals with distancing trees from the another person’s fields.",
"A person may not plant a tree near another’s field unless it is four cubits away, no matter whether it be a vine or any other kind of tree. If there was a wall between, each may plant up to the wall on either side. If its roots entered within the other’s property, the other may cut them away to a depth of three handbreadths so that they shall not hinder the plough. If he dug a cistern, trench or cave, he may cut them away as far down as he digs, and the wood shall belong to him. A tree planted close to another person’s property will eventually grow onto that property, both above and below ground. Therefore a person was required to distance his trees four cubits from another’s property. The remainder of the mishnah is basically refining this general law which we learn in section one. In 1a we learn that the law is not applicable if there is a fence, which would prevent the leaves of the trees from entering into the neighbor’s property. If there is a fence than one may plant his trees right up to the fence. In 1b we learn that if the roots of your neighbor’s tree enters your property you are allowed to remove the roots that are less than three handbreadths deep, so that the plow will not get caught on them. Finally, we learn at the end of the mishnah that if one was digging something on his property and the roots interfered, he can cut them away even further than the aforementioned three cubits.",
"Questions for Further Thought
• In the last clause of the mishnah it says that the trees (i.e. cut away roots of trees) are his. Why doesn’t he have to return them to the owner of the tree?"
],
[
"If a tree stretches into another’s field, he may cut it away as far as is reached by an ox-goad held over the plough, or, if it is a carob or sycamore, [he may cut it away] according to the plumb line’s measure.
All trees that stretch over irrigated fields may be cut away according to the plumb line’s measure.
Abba Shaul says: “All trees that bear no fruit may be cut away according to the plumb line’s measure.”
We learned yesterday in mishnah twelve that if another person’s trees encroach on one’s property one may cut out the roots, up to a certain depth. In mishnah thirteen we learn that if another person’s branches encroach on one’s property they may also be removed.
In this mishnah we encounter two different ways in which a person may cut off the branches of a tree that encroaches on his property. In section one we learn that in general a person can cut them as high as is reached by the “ox-goad held over the plough”. An ox-goad is the whip which a person riding a plough pulled by oxen would use to goad the oxen. If the branches were to interfere with the ox-goad one would have trouble plowing his field. Therefore, up until this height one can always remove the branches. The other measure for cutting down trees is the plumb line, which would go straight up from the end of his property. In other words, any branches hanging over his property may be cut down. One can cut away according to the measure of the plumb line in the following situations: 1) a carob or sycamore’s tree, whose branches are thick and will provide too much shade for the field over which they hang. 2) Any tree that stretches over an irrigated field, which needs a lot of irrigation. A tree from another field blocking its access to rain will cause much damage to this type of field. According to Abba Shaul one may always cut away up until the plumb line."
],
[
"Introduction\nIn mishnah fourteen we learn that if the branches of a tree encroach on the public domain, they too may be cut down.",
"If a tree stretches into the public domain enough must be cut away to allow a camel and its rider pass by. Rabbi Judah says: “A camel laden with flax or bundles of branches.” Rabbi Shimon says: “Every tree [must be cut away] according to the plumb line’s measure, because of impurity. There are three opinions in our mishnah with regards to removing branches that overhang onto the public domain from a tree originating in private property. The first opinion is that they must be removed up until a height that will allow a camel and its rider to pass by. Rabbi Judah says that the branches do not need to be removed all the way to the height of the rider for he can duck. They only need to be removed to the height of the camel’s load which obviously cannot duck to avoid the branches. Rabbi Shimon says that all of the branches which overhang into the public domain must be removed because of the laws of impurity. According to the Jewish system of purity and impurity if a pure thing is overshadowed by the same object overshadowing an impure thing, the impure thing will convey impurity to the pure thing. In other words, if a bone which imparts impurity were to be underneath branches and a person were to be there as well, the person would be impure. In order to prevent such a situation, Rabbi Shimon does not allow branches to grow into the public domain."
]
],
[
[
"The legal period of possession [in order to establish ownership] for houses, cisterns, trenches, caves, dovecotes, bath-houses, olive-presses, irrigated fields and slaves and anything which continually produces a yield is three complete years.
The legal period of possession [in order to establish ownership] for a field irrigated by rain water is three years and they need not be completed. Rabbi Yishmael says: “Three months during the first year, and three months during the last year and twelve months during the middle year, which makes eighteen months.” Rabbi Akiva says: “One month during the first year and one month during the last year and twelve months during the middle year, which makes fourteen months.”
Rabbi Yishmael said: “When does this apply? With regards to a sown field, but with tree plantation, if he brought in his produce (, collected the olives and gathered in his fig harvest, this counts as three years.”
In order to understand our mishnah and the remaining mishnayoth of the chapter we will need to explain how one can demonstrate ownership over a piece of land by “possession”. In general in Jewish law there is an assumption of ownership to the one who possesses a certain item. If Reuven possesses an item and Shimon claims that the item is his, and Reuven responds that Shimon sold him the item, Shimon will have to bring proof that the item still belongs to him. Since the item is in Reuven’s possession it is assumed to be his. This is true with regards to movable property. However, with regards to land, a person who is on a piece of land cannot necessarily claim ownership to the land. If Reuven is on a piece of land and Shimon claims it is his and Reuven responds that Shimon sold it to him, Reuven will have to prove his claim. If, however, Reuven has been living on this land, or in another way possessing the land for three years, he has an assumption of possession. In such a case Shimon will need to prove that he still owns the land if he wishes to recover it from Reuven. The idea behind this law is that if a person demonstrated ownership over a piece of land for an extended period of time and no one protested, it is reasonable to assume that the land is his.
The third chapter of Bava Batra deals with the rule of three year possession called “chazakah” in Hebrew. The rule, as we shall see, does not apply in the same way with everything.
If a person demonstrated ownership over the items listed in section one for three years, than they are assumed to be his. For instance, if Reuven used a house for three years and after this time Shimon came and claimed that the house was his, if Reuven were to respond that Shimon sold or gave him the house, Reuven needs to bring witnesses that he has possessed the house for three years, and then it belongs to him. In order to establish a presumption of ownership over these items one must possess them for three full years.
In order to establish a presumption of ownership over a field irrigated by rain water, one need not possess the field for three full years, but rather it is sufficient to posses them for parts of three years. This difference in law is explained by the difference between the irrigated field mentioned in section one and the field irrigated by rain water in section two. A field irrigated by man will yield produce many times in a season and therefore to demonstrate ownership one must actively possess the field for three full years. The field irrigated by rain will only yield one crop per year and therefore it is enough to harvest or work three crops to demonstrate possession. In order to do this one can work the field for three partial years. Rabbi Yishmael and Rabbi Akiva disagree with regards to the nature of the partial three years.
In section three Rabbi Yishmael states that there is a difference between a field sown with produce and a field with fruit trees. When Rabbi Yishmael stated that one needed eighteen months in order to demonstrate ownership, this related to sown fields. In a sown field there is only one harvest per season, and therefore he would need three harvests in order to demonstrate ownership through possession. With regards to trees, each type of tree has its own harvesting season. Therefore if he were to harvest the grapes in one season, the olives in another and the figs in a third, that would be enough to establish possession, even though they were all done in one year."
],
[
"There are three regions with regards to possession: Judea, beyond the Jordan and the Galilee. If the owner was in Judea and another took possession [of his property] in the Galilee; Or if he was in the Galilee and another took possession [of his property] in Judea, such possession does not demonstrate ownership, until he is in the same region.
Rabbi Judah said: “They have specified a period of three years so that if the owner was in Spain and another took possession [of his property] during one year, they could make it known to the owner during the next year and he could return in the third year.”
Our mishnah divides the land of Israel into three distinct parts. As we shall see, this division is important for the rules of chazakah, which we began to learn in mishnah one of this chapter.
If a person took possession of a field and another came within three years and protested that the field was his, the original owner would retain title to the property. Our mishnah deals with a situation where the original owner lived in a different region from his field and therefore he may not have known that another had taken possession of the field, in order to protest within the allotted three years. According to the opinion in section one, in such a case there is no demonstration of ownership through possession for three years. If the owner was in a different region, for instance in the Galilee and the field was in Judea, we cannot assume that the reason he didn’t protest for three years is that he didn’t own the field. Since he may not have heard there can be no ownership through possession. According to Rabbi Judah, the reason that the Rabbis allotted three years in order to establish ownership by possession is to allow messengers to travel up to a year’s distance, there and back, in order to alert the original owner that another had taken his fields. In other words, according to Rabbi Judah, three years time is meant to give the person a chance to protest on another’s possession of his property. If he doesn’t do so, we do not assume that he didn’t hear. Rather, we assume that he sold or gave away his property to the current possessor and therefore does not protest."
],
[
"Introduction\nIn the previous two mishnayoth we began to learn the laws of establishing ownership through possession. In mishnah three we learn what a “possessor” must say to the other person who claims ownership, in order for the “possessor” to establish ownership through possession. We also learn in mishnah three that certain people who possess land cannot claim ownership, even though they possessed for three years.",
"An act of possession without which there is no claim [on the ownership of the property] is not valid possession [to establish ownership]. How is this so? If he said to him: “What are you doing on my property? And the other answered: “No one ever said anything to me”, this is not valid possession [to establish ownership]. [If he said to him]: “You sold it to me”, “You gave it to me as a gift”, “Your father sold it to me”, “Your father gave it to me as a gift”, this is valid possession [to establish ownership]. He who holds possession [for three years] due to inheritance [from the previous owner], does not need to make a claim. Section one In order for a person to claim ownership through possession he must claim that the counter claimant sold it to him. For instance Reuven comes to Shimon and claims that the land that Shimon possesses is Reuven’s. Reuven brings a deed or witnesses to prove that the land is his. We can now be sure that Reuven once owned the land and the question is does he still own the land. If Shimon says that from the time he possessed the land no one said anything to him, the land will go back to Reuven. Since Shimon does not have a logical explanation for how he received the land, he cannot keep it. If, however, Shimon were to claim that Reuven sold him the land or gave it to him as a gift, or that Reuven’s father had done so, than we can assume that the land now belongs to Shimon. Since he occupied the land for three years without Reuven protesting, we assume that Shimon received the land from Reuven or his father and lost his documentation. The one exception to this rule is the one who received his land as part of an inheritance from his father. If he can prove the land was his as inheritance he need not prove how his father received the land.",
"Craftsmen, partners, sharecroppers and guardians cannot establish ownership through possession. A man cannot establish ownership through possession of his wife’s property, nor may a wife establish ownership through possession of her husband’s property, nor a father of his son’s property, nor a son of his father’s property. Section two The people listed in section two by definition will use other people’s property. For instance craftsmen may come and do work on another person’s property. This is not a sign that they own the property and therefore they cannot establish ownership through possession. So too a spouse cannot claim title to his/her spouses property through possession, since husbands and wives regularly make use of each other’s property without protesting. Finally, the same is true of parents and children: they too cannot claim title to the other’s land due through possession.",
"When is this so [that one needs three years to establish ownership]? When the person attempts to acquire the land through possession. But, when the property was given as a gift, or when brothers shared a piece of their inheritance, or when one claimed title by possession to the property of a convert [who died without inheritors], then if the claimant has shut in, walled up or broken down anything, this counts as securing ownership through possession. Section three We learn here that it takes three years to establish ownership, only when the property is in dispute. However, if someone gives property to another person, or brothers split the property left to them in inheritance, or a person comes to take property that has no owners, all he must do is show minimal use on the property and it belongs to him. The example of minimal uses is that he changes a part of the outside wall, by making a lock, by adding onto the fence or even by breaking the fence. In these three ways a person can establish immediate ownership and the three years are not necessary."
],
[
"If two testify that he has had the use [of property] during three years and they are found to be false witnesses, they must make full restitution to the owner.
If two [false witnesses] testify of the first year, two of the second, and two of the third, they divide up the costs of restitution between them.
If three brothers testify and another is included with them, they offer three different acts of testimony, but their words count as a single act of testimony when the evidence is proved false.
In mishnah four we learn the consequences of falsely testifying with regards to possession for three years.
According to Deuteronomy 19:19 the punishment for testifying falsely is that punishment which would have been meted out on the defendant. In our mishnah, witnesses falsely testify that a man had three years possession of a field. Had they been telling the truth the field would have changed from belonging to the original owner to belonging to the possessor. In other words, through their testimony they caused a field to transfer from one person to another. In such a case, if they testified falsely, they would have to pay the cost of the field to the original owner. They tried to make him lose a field now they have to pay him the cost of a field.
Section two deals with a scenario where three sets of witnesses testify to possession, each testifying to one year. Together they can establish that he had three years possession and now owns the land. If they were found to be false witnesses they will collectively pay the punishment of paying the original owner the value of the field.
In order to understand section three we must mention that relatives are not allowed to testify together in order to make up the required two or more witnesses. In the case discussed in this section three brothers testified to the possession of the field, each brother to a different year. In addition, one person testified to all three years. In total, two people testified with regards to each year, and no single year was testified to by two brothers. In this case their testimony is accepted as three different testimonies, and therefore we do not have a problem of brothers testifying together. However, if they are lying, it is considered to be one testimony, with regards to making compensation to the original owner. The person who testified to all three years will pay half of the value of the field and the three brothers will together pay half, each brother paying one-sixth."
],
[
"Introduction\nThe mishnah which we will learn today continue to deal with establishing ownership by possession (chazakah), the subject of the entire third chapter. Our mishnah teach the types of activities which if done for three consecutive years without the protest of the owner of the land, house or courtyard or courtyard, may continue to be done afterwards, even if the owner were to protest. For instance if Reuven does a certain activity on Shimon’s property for three years and Shimon does not protest, he cannot do so at a later date.",
"What are usages which are effective in establishing title through possession and what are usages which are not effecting in establishing title through possession? If a man put a beast in a courtyard, or an oven or stoves or mill-stones, or reared fowl [in a courtyard] or put his manure in a courtyard, this is not effective in establishing title through possession. But if he built for his beast a partition ten hand-breadths high, so too for an oven, so too for a stove, so too for a mill-stone, [or] he brought fowl inside the house, or prepared for his manure a place three hand-breadths deep or three hand-breadths high, this is effective in establishing title through possession. Our mishnah lists certain type of acts which if done on another person’s property for three consecutive years, acquire automatic subsequent permission to continue to do the activity. In other words, after three years there is an assumption that the owner of the property does not mind the other person doing these activities, and he therefore loses his right to subsequently protest. In section 1a we learn that placing an animal or other object in another’s courtyard will not cause entitlement to do so. For instance if Reuven were to use Shimon’s courtyard for three years as a place for his animal and Shimon were not to protest, Shimon would still retain the right to protest later. In section 1b we learn that if Reuven had built a structure on the property of Shimon, and Shimon had not protested for three years, Shimon now loses the right to protest. We assume that if Reuven used the property for such a long time in such a substantial manner, than it is does not bother Shimon and he cannot later change his mind."
],
[
"Introduction\nMishnah six continues to discuss what types of activities can create chazakah.",
"Our mishnah continues to discuss the same issue as we discussed in the previous mishnah: which acts entail possession in order to establish the right to continue to do the acts after a period of three years. If the act is considered a sign of possession than the owner of the item can tell others that they may not use the object. Since if another person uses the object he will establish the right to continue to do so in the future, it makes sense that the owner can prevent them from usage in the present. If, however, the act is relatively insignificant, and will not lead to the right to continue to do the act in the future, than the owner cannot prevent others from doing so in the present. We will now explain each section separately.",
"A gutter spout cannot cause title through possession [so that the spout may still be moved] but title through possession may be claimed to its place [so that the place must be left for its present purpose]. A gutter spout is a tiny pipe on the edge of a larger gutter pipe which would be on the roof to allow drainage of water. If the spout, which belongs to one person, is draining into another’s courtyard the owner of the courtyard can direct the spout out of his courtyard and this will not establish possession over the spout. He cannot, however, totally remove the spout for the mere existence or non-existence of the spout is a sign of possession. If he were to remove the spout and the owner were not to protest, the owner would not be able to protest after three years.",
"A gutter can give title through possession. A gutter (larger than the spout) is a sign of possession. Therefore the owner of a courtyard cannot even direct another person’s gutter, for if the owner were not to protest after three years he would lose his right to do so.",
"An Egyptian ladder cannot give title through possession but a Tyrian ladder can. An Egyptian ladder is a small ladder used on a temporary basis. Placing one in another person’s courtyard is not a significant act. If Reuven were to place his Egyptian ladder on Shimon’s property for three years, Shimon could still protest after three years. However, the use of a Tyrian ladder, which is large, is a significant act. If a person were to use it in another’s courtyard for three years then the owner of the courtyard could not subsequently protest.",
"An Egyptian window cannot give title through possession but a Tyrian window can. What is an Egyptian window? Any through which a man’s head may not enter. Rabbi Judah says: “If it has a frame, even though a man’s head cannot enter through it, it can give title through possession.” An Egyptian window is a small window. If Reuven were to open an Egyptian window in the wall of his courtyard and it were to exist for three years, Shimon could still subsequently block the window. Even though Shimon did not protest for three years, there are no subsequent rights caused by a small window. However, a Tyrian window which is large, does cause subsequent rights. If Reuven were to open a Tyrian window in the wall of his courtyard and it were to exist for three years, Shimon could not subsequently block the window. If he wished to protest he should have done so during the three years.",
"A projection, if it extends a handbreadth or more can give title through possession, and the other [into whose premises it projects] can protest against it. But if it is less than a handbreadth it cannot give title through possession and the other cannot protest against it. If Reuven were to build a wall that had a projection on it, such as a stray piece of wood or stone, longer than a handbreadth and that projection were to extend onto Shimon’s property, and Shimon did not protest for three years, he could no longer protest. Since this is an intrusive projection, we also allow Shimon to force Reuven to take it down, provided he protest within three years. A smaller projection is different. If it were to extend less than one handbreadth into Shimon’s property, Shimon may not protest. However, even after three years Shimon could take down the projection, or otherwise block it, since there is no assumption of possession."
],
[
"Introduction\nMishnayoth seven discusses things a person builds on his property that might damage other people’s property in an indirect manner. Specifically it deals with a person building a window or door which would allow him to see into another’s property. This and the following mishnah are not related to the subject of the chapter. Rather they relate to the subject of the second chapter.",
"In order to understand our mishnah we must remember that in the times of the Mishnah houses were built around a common courtyard. A person would have joint ownership of that courtyard with the other house owners whose homes also opened into the courtyard (see the diagram below).",
"One may not make a window to open into a jointly held courtyard. A person should not open a window in his home which would look into the jointly held courtyard. The mishnah wishes to prevent the situation where other people could see into a person’s home.",
"If he bought a house in another [and adjoining] courtyard he may not open it into a jointly held courtyard. If Reuven owned a house and held joint ownership over courtyard a and then bought a house that opened to courtyard b but was also adjacent to courtyard a, Reuven may not open the new house to courtyard a. The problem is that by opening a new house to the courtyard he will increase the number of people participating in that courtyard. In such a case the neighbors who share courtyard a may protest. Neighbors Courtyard a Reuven’s current house Reuven’s new house Neighbors Courtyard b Neighbors Courtyard a courtyard a potential opening Neighbors Courtyard b courtyard b Neighbors Courtyard a Neighbors Courtyard a Neighbors Courtyard b Neighbors Courtyard b",
"If he built an upper room over his house he may not make it open into the jointly held courtyard; But, if he wishes, he may build another room within his house or build an upper room over his house and make it open into his own house. For similar reasons to those mentioned in section two, a person may not make a second floor in his home and make it open into the courtyard. If he were to rent this second floor to another family he would increase the number of people participating in the courtyard. He may, however, divide his house and add a room or build a second floor and have it open into his own house. Although this too will increase the number of residents, since a person could in theory rent out his house to as many residents as he wishes he can also add more rooms to his house, so long as he doesn’t make a new opening to the courtyard.",
"In a jointly held courtyard a man may not build a door directly opposite another’s door, or a window directly opposite another’s window. If the window was small he may not make it larger; if it was a single window he may not make it into two. Here we learn that a person may not build a door or window opening into a jointly held courtyard, if that window or door will allow people to look from one house into the other through the courtyard. He also may not expand the window by making it larger or by turning one window into two.",
"But in the public domain he may open a door opposite another’s door, or a window opposite another’s window. If the window was small he may make it larger; if it was a single window he may make it into two. A person may however make a window in his home that is opposite a window in a house on the other side of the public domain. Since the other person in any case had to be careful from people in the public domain peeping in, a window from a private home does not create further damage."
],
[
"Introduction\nMishnah eight deals with permitted and not permitted damages that an individual might create to the public domain.",
"One may not hollow out a space underneath the public domain [such as] cisterns, trenches or caves. Rabbi Eliezer permits it if it is such that a wagon loaded with stones can [safely] go over it. One may not dig out a space underneath the public domain lest the ground crash in. According to Rabbi Eliezer if the ground is strong enough one may do so.",
"Projections and balconies may not be built into the public domain; but if a man wishes to build a [projection or balcony] he may withdraw [his wall] within his own domain and build out from it. If he bought a courtyard in which were already projections and balconies, his right to maintain them may not be disputed. One may not build projections of any nature into the public domain, but one may pull back his property and build a projection out from there. If he bought property that had such projections we assume that they were not built on public property and we do not make him remove the projections.",
"Questions for Further Thought:
• Why might one have thought that it is forbidden to build a projection or a balcony even within one’s own property?"
]
],
[
[
"Introduction\nChapter four of Bava Batra deals with the laws of sale, and specifically with the question which things are included in the sale of a particular item. Mishnah one begins to discuss the laws of selling a house: when a house is sold what things are sold with and as part of the house?",
"If a man sold a house, he has not sold its side chambers, even though they open into the house, nor the room that is behind [the house], nor the roof, if it has a railing more than ten hand-breadths high. Rabbi Judah says: “If the roof as entrance shaped like a door, even if the railing is not ten hand-breadths high, it is sold.” If someone sells a house without specifying what parts of the house he is selling, there are certain things that are not included in the sale. According to section one, basically the main room is included in the house, but the side room and the room behind the house are not included. The roof is also not included, on the condition that it has a railing more than ten hand-breadths high. According to Rabbi Judah, even if the railing is not ten hand-breadths high, if it has an entrance the shape of a door, it is not sold with the house. In order for the purchaser to acquire these things, he would have to specify so at the time of the sale.",
"Questions for Further Thought:
• Why is important for the roof to have a railing more than ten-handbreadths high, in order for it not to be included in the sale?"
],
[
"Nor [has he sold] the cistern or the cellar, even though he had written in the deed of sale, “the depth and height”.
And he [the seller] must buy himself a path [from the new owner to reach the cellar or cistern], according to Rabbi Akiva. But the Sages say: “He need not buy himself a path.” And Rabbi Akiva agrees that if he had said to him, “Excepting these [the cistern or cellar]” that he need not buy himself a path.
If he sold them [the cellar or cistern] to another, Rabbi Akiva says: “He need not buy himself a path.” But the Sages say: “He must buy himself a path.”
Mishnah two continues to deal with the question which the mishnah began to deal with in mishnah one, when a house is sold what things are sold with and as part of the house?
All of the sages of our mishnah agree that when a person sells another person a house, he has not sold the underground chambers, namely a cistern for storing water, or a cellar used to store food and wine. Even if he wrote that he was selling to the depth of the house, his intent may have been the floor of the house, and not the cellar or cistern. The argument between Rabbi Akiva is over whether or not the seller must buy a path in the house that he sold which will allow him to get to his cellar or cistern. According to Rabbi Akiva, since he sold the whole house, the new owner will have the right to refuse entrance. If the old owner wants to get to his cellar he will need to purchase a path. The Sages disagree. When the person sold the house and did not sell the cellar, we can assume that he intended not to sell a path in the house by which he could reach the cellar. Hence, he does not need to buy a path. Rabbi Akiva agrees with the Sages that if the seller specified to the buyer that he was not selling the cellar or cistern, than he intended on retaining the path and he need not, therefore, purchase the path from the buyer of the house.
Section three discusses the opposite situation, where a person sells a cistern or cellar but not the house. According to Rabbi Akiva, the assumption is that when the seller sold the cistern he intended to sell a path as well, and the buyer need not, therefore, purchase a separate path. According to the Sages, the seller may have sold the cistern or cellar without intending to sell a path by which the buyer could reach them. Consequently, if the buyer wishes to get to his new cellar or cistern he must buy a path as well."
],
[
"Introduction\nMishnah three continues to discuss what parts of the house are sold with a house when the house is sold without specification as to what is being sold. Mishnah four discusses what parts of a courtyard are sold, also when specification is lacking.",
"If a man sold a house he has sold also the door, but not the key. He has sold a permanent mortar but not a movable one. He has sold the convex millstone (the lower, usually fixed but not the concave one. Nor [has he sold] the oven or the stove. But if he had said: “[I am selling to you] the house and all that is in it, these are also sold.” The mishnah lists the things that are permanent parts of the house and therefore are sold as part of the house even though not specified in the sale. The door is a permanent part of the house and therefore it is sold with the house. The key is not a part of the house and hence, is not part of the house. A permanent mortar, used for crushing, is part of the house but a movable one is not. The millstone fixed to the ground is part of the house but the movable, top millstone is not. Nor are ovens and stoves part of the house. Finally the mishnah clarifies that if the seller had specified that he is selling all that is in the house, all of these things are also including."
],
[
"Introduction\nMishnah four discusses what parts of a courtyard are sold when specification is lacking.",
"If a man sold a courtyard, he has also sold its houses, cisterns, trenches and caves, but not the movable property. But if he had said: “It and all that is in it” all of these are also sold. But in neither case has he sold the bath-house, or the olive press that are in it. Rabbi Eliezer says: “If a man sold a courtyard, he has sold only the air (the open of the courtyard. This mishnah explains what parts of a courtyard complex are sold with it even though not specified as part of the sale. The sale of the courtyard includes all of the houses, and underground structures that are attached or part of the courtyard. As in the previous mishnah, only the fixed, permanent pieces of the property are included in the sale. If, on the other hand, the seller specified that he was selling everything in the courtyard, he has sold the movable property as well. However, as we learn in section 1c, the bath-house and olive press are in any case not considered part of the courtyard, and are consequently not sold with it, even if he stipulated that he was selling everything in the courtyard. Rabbi Eliezer disagrees. According to him, when a man sells a courtyard he is only selling the empty yard part, but not the structures that are attached to it.",
"Questions for Further Thought:
• Why are a bath-house and olive press not considered part of the courtyard to be sold with it?
• With which parts of the mishnah does Rabbi Eliezer disagree?"
],
[
"Introduction\nThe mishnah which we will learn today continues to discuss which things are included in certain sales.",
"If a man sold an olive press he has sold also the vat, the grindstone, and the posts, but he has not sold the pressing-boards, the wheel or the beam. But if he had said: “It and all that is in it”, all these are sold also. Rabbi Eliezer said: “If a man sold an olive press he has sold the beam also.” We learn in this mishnah that when a man sells an olive press without specifying which parts of the olive press he is selling, he has sold only the parts that are fixed in their place. These include the vat used to collect the oil, the grindstone used to crush the olives and the posts used to prop up the beam that would press the olives. The parts of the press that are not fixed in place, namely the pressing-boards, placed on top of the sacks of crushed olives, the wheel, used to lift the beam, and the beam, used to exert pressure on the olives, are all not sold with the olive press. If, however, he had stated that he was selling the press and all that was in it, than he has sold the pressing-boards, the wheel and the beam as well. Rabbi Eliezer disagrees with the first clause. According to him when one sells an olive press one sells the beam, even though it is not fixed. Since the beam is the most important part of the press, it is assumed that it is sold along with it."
],
[
"Introduction\nMishnah five discusses what is sold with an olive press and mishnah six discusses what is sold with a bath house.",
"If a man sold a bath house, he has not sold the planks or the benches or the curtains. But if he had said: “It and all that is in it”, all these are sold also. In neither case has he sold the water containers or the stores of wood. In the first section we learn that when someone sells a bath house, the planks which serve as the floor of the bath house, the benches and the curtains are not included in the sale. Only if he stated that he was selling all that is in the bath house are these items considered part of the sale. In any case the water containers and stores of wood are not considered to be part of the bath house and are therefore not sold with it, even if he stated that he was selling all that is in the bath house."
],
[
"Introduction\nMishnah seven discusses what is sold as part of a town, if one should sell the town without specifying what is included in the sale.",
"If a man sold a town, he has also sold the houses, cisterns, trenches, caves, bath houses, dovecotes, olive presses, and irrigated fields, but not the movable property. But if he had said: “It and all that is in it”, even if cattle and slaves were in it, all of these are sold. Rabban Shimon ben Gamaliel says: “If a man sold a town he has also sold the town watchman.” As we have learned on several occasions in our chapter, we learn in mishnah seven that when a person sells a piece of property, he sells only the parts of that property that are fixed in their place. In this case, when a person sells a town, included in the sale are all of the fixed institutions of that town, such as the houses and the commercial institutions. If he wishes to sell the movable property as well, such as the animals and the slaves, he must specify that he is selling “it and all that is in it”. In that case, he has sold even the cattle and the slaves. Rabban Shimon ben Gamaliel disagrees slightly with the previous opinion. According to him when a person sells a town he sells the town watchman, presumably a slave, as well.",
"Questions for Further Thought:
• Why might Rabban Shimon ben Gamaliel hold that when a person sells a town he sells the town watchman but not other slaves?"
],
[
"Introduction\nMishnah eight discusses what is sold as part of a field.",
"If a man sold a field he has also sold the stones that are necessary to it, and the canes in a vineyard that are necessary to it, and its unreaped crop, and a partition of reed which covers less than a quarter-kav’s space of ground, and the watchman’s hut if it was fastened down with mortar, and ungrafted carob trees and young sycamores. This mishnah lists the things that are sold with a field. Tomorrow, in mishnah nine we will learn a long list of things that are not sold with a field. The list of things that are sold with a field includes things that are a necessary part of the maintenance of the field such as the stones used for fences and the canes used in a vineyard to grow the vines. It also includes the produce still attached to the ground and similarly the watchman’s hut if it was attached to the ground. [Note: there are other versions of this line concerning the watchman’s hut]. It also includes some small, as of yet insignificant trees as well as an insignificant portion of a reed partition. Since these things are not significant in and of themselves they become included as part of the field."
],
[
"Introduction Mishnah nine continues the discussion began in mishnah eight, what is sold as part of the sale of a field.",
"Since this is an extremely long mishnah we will explain it section by section.",
"But [one who sold a field] has not sold the stones that are not necessary to it or the canes in a vineyard that are not necessary to it or the produce that is already picked from the ground. But if he had said, “It and all that is in it” all of these are sold also. But in neither case has he sold any partition of reeds that covers a quarter-kav’s space of ground, or the watchman’s hut if it was not fastened down with mortar, or grafted carob trees or cropped sycamores, or any cistern or winepress or dovecote, whether they are lying waste or in use. In the previous mishnah we learned what things are sold as part of a field and now in our mishnah we learn the opposite categories, things that are not sold as part of a field. Anything that is not necessary for the maintenance of the field is not sold with it, such as stones not used as part of a fence or canes in a vineyard not used for the vines. Picked produce is not considered part of the field. If the seller had specified that he was selling all that was in the field than he has sold the preceding items but he has still not sold the partition of reeds that is of significant size, nor the watchman’s house which is not attached to the ground. Since these items are separate from the field they are not sold with the field and are not considered to be “in the field”. He also has not sold the grafted carob or the cropped sycamore. These are more important than the ungrafted carob and the young sycamore that are sold with the field, as we learned in mishnah eight. Since they are important, they must be sold on their own. Finally he has not sold any of the major structures which may be in the field, such as a cistern for storing water, a wine press and a dovecote. These are not sold even if they are not in use.",
"And [the seller] must purchase [from the buyer] a way thereto, according to Rabbi Akiva. But the sages say: “He need not.” And Rabbi Akiva agrees that if he had said, “Excepting these”, he need not buy himself a way thereto. If he had sold them (the cistern, winepress or dovecote) to another, Rabbi Akiva says: “He [that bought them] need not buy himself a way thereto. But the Sages say: “He must buy himself a way thereto.” In this section we learn of a dispute between Rabbi Akiva and the other sages regarding the necessity for a seller to buy a path to reach his cistern, wine press or dovecote which are on the field he just sold. According to Rabbi Akiva the seller must buy a path from the buyer; according to the sages he need not. We also learn of the opposite case, where the seller sold a cistern, wine press or dovecote but did not sell the field. According to Rabbi Akiva in such a case the buyer need not buy a path from the seller; according to the sages he must. This entire section was taught in mishnah two of our chapter and there we explained it in greater depth.",
"When is this so? With regards to he that sells his field. But if he gives it as a gift, he gives everything that is in it. If brothers who divided [an inheritance] came into possession of a field, they come into possession of everything that is in it. If a man secured title by possession of the property of a convert, and secured title by possession of the [convert’s] field, he secures title to everything that is in it. If a man dedicated a field [to the Temple] he has dedicated everything in it. Rabbi Shimon says: “If a man dedicated a field, he has dedicated only the grafted carob trees and cropped sycamores.” This section states that all that we have learned in the previous parts of the mishnah is true only when a person sells a piece of land to another. However, if he were to give the land to another person as a gift, we assume that he is giving not only the land but all of the things in it as well. This is true even though he does not specify that he is giving all that is in it. Furthermore, when brothers inherit land, they also inherit all that is on the land. When a person secures property that belonged to a convert who died without inheritors, he too secures not only the land but all that is in it. [A convert’s non-Jewish family do not inherit him. Therefore if he dies without children his property will not go to any inheritors.] Finally, when one dedicates a piece of land to the Temple, we assume that he is dedicating not just the land, but all that is in it. Over this last detail Rabbi Eliezer disagrees. According to him when a person dedicates a piece of land he is only dedicating the trees which receive their water and nutrients directly from the land. All of the other things are not part of his dedication to the Temple.",
"Questions for Further Thought:
• Section 1b: Why does the mishnah need to emphasize that cisterns, wine presses and dovecotes are not sold with a field no matter if they lie in waste or are in use? What might you have thought had the mishnah not included this line?
• Section 3: Why is there a difference between one who sells a piece of land to another and one who gives it away?"
]
],
[
[
"Introduction\nMishnah one deals with what is included in the sale of a boat, a wagon pulled by mules or oxen.",
"If a man sold a ship, he has also sold the mast, the sail, the anchor, and all the means of steering it. But he has not sold the slaves, the packing-bags, or the lading. But if he had said, “It and all that is in it”, all these are sold also. If a man sells a ship without specifying what is included in the sale, all of the fixed parts of the ship are included in the sale. However, the slaves and the bags used for packaging the merchandise on the ship are not included in the sale, unless he were to specify that they were. This law is similar to many of the laws we learned in the previous chapter.",
"If a man sold a wagon, he has not sold the mules, and if he sold the mules, he has not sold the wagon. If he sold the yoke, he has not sold the oxen, and if he sold the oxen, he has not sold the yoke. Rabbi Judah says: “The price tells all. How is this so? If one said to him, “Sell me your yoke for 200 zuz, it is known that no yoke costs 200 zuz.” But the sages say: “The price is not proof.” Even though a wagon is pulled by mules, if a man sold a wagon the mules are not automatically included in the sale. Likewise, if he sold the mules, he has not automatically sold the wagon. The same is true with regards to oxen and the yoke used to steer them. If a person sold one, he has not necessarily sold the other. Rabbi Judah disagrees and he thinks that the price should be able to determine what was included in the sale. If a person sold a yoke for an exorbitantly high price, it is patently obvious that the oxen were part of the sale. However, the sages do not believe that the price is proof. If a buyer pays a high amount for a yoke and then wishes to claim that he bought the oxen as well as the yoke he must bring proof."
],
[
"Introduction\nMishnah two deals with what is included in the sale of a donkey.",
"If a man sold a donkey he has not sold its trappings. Nahuma of Madi says: “He has sold its trappings.” Rabbi Judah says: “Sometimes they are sold and sometimes they are not sold. How is this so? If the donkey was before him with its trappings on it and he said, ‘Sell me this donkey of yours’, the trappings are sold (with the. If he said, ‘Sell me that donkey of yours’, the trappings are not sold.” A donkey is usually packed with several bags used to carry the donkeys load. These are the “trappings” referred to in the mishnah. According to the first opinion, if a man sold a donkey, the trappings are not sold. Nahum of Madi dissents and declares that they are sold. Rabbi Judah states that one can determine if the trappings were sold by the circumstances and by the language used in the sale. If the donkey was standing in front of the seller with its trappings on it and the seller specified that he wants to buy this donkey, then he has bought the trappings as well. Since he saw the trappings we can assume that his intention was to buy them with the donkey. However, if he just tells him to sell “that donkey of yours” we cannot be sure that his intention was to buy the donkey standing in front of him. Since we cannot determine what he intended to buy or what the seller intended to sell, the trappings are not included in the sale.",
"Questions for Further Thought:
• How is Rabbi Judah’s opinion in this mishnah similar to his opinion in mishnah one?"
],
[
"Introduction Mishnah three deals with what is included in the sale of various items such as donkeys, cows, and beehives. Mishnah four deals with the a person who buys trees in another person's field and whether or not the buyer has acquired the land on which the trees grow.",
"If a man sold a donkey he has sold its foal. If a man sold a cow he has not sold its calf. The question in this section is whether or not a person has sold the young child of a mother animal, when he has sold the mother. According to the mishnah when he sells a donkey he has sold the foal but when he sells a cow he has not sold the calf. The Talmud explains that the mishnah is dealing with a case where the seller says that he is selling a nursing donkey or cow. Since people do not use donkeys for milk, it can be assumed that when he said nursing donkey he intended to sell the donkey and its young, who may be nursing from its mother. However, since people do use cows for milk, it may be that he was selling the cow on its own, without the young, and the reason why he called it a nursing cow was to let the buyer know that this cow produces milk.",
"If he sold a dungheap, he has sold the dung on it. If he sold a cistern, he has sold the water in it. If he sold a bee-hive he has sold the bees. If he sold a dovecote he has sold the pigeons. In this section four things are listed, which if the outer container is sold, the contents are sold with it. Since the sole purpose of the container is to hold the contents, we can assume that when the sale was made, the intent of both the buyer and the seller was to include the contents.",
"If a man bought the fruit of a dovecote from his fellow he must let go the first pair that are hatched. [If he bought], the fruit of a beehive he may take three swarms and then [the seller] may make the rest sterile. If a person buys the young pigeons that will be born in a dovecote (where pigeons are raised), then he return to the seller the first pair that are born. This is in order for the parents, who are still owned by the seller, to have a pair of young to take care of, so that the parents won't fly away. If one buys the bees that will be born in a beehive, he may take three swarms. After taking the three swarms, the seller may cause the bees to be sterile so that their energy will be devoted to making honey and not to making young. Alternatively, the last phrase of this section of the mishnah may state that after taking the first three swarms, the buyer takes alternative swarms. The lack of clarity in the mishnah is due to the dual meaning of the Hebrew word.",
"[If he bought] honeycombs he must leave two honeycombs. [If he bought] olive trees to cut down the branches, he must leave two shoots. When a person buys honeycombs from another persons beehive, he must leave at least two honeycombs behind, in order to feed the bees that are left. Similarly, when a person buys an olive tree with the intent to cut down the branches he must leave two branches so the tree can regenerate."
],
[
"Introduction\nMishnah four deals with the a person who buys trees in another person’s field and whether or not the buyer has acquired the land on which the trees grow.",
"Our mishnah begins with a dispute between Rabbi Meir and the Sages. According to the Sages when a person buys two trees he has not bought the ground they are on, and according to Rabbi Meir he has bought the ground. The remainder of section one goes according to the Sages. Section 1b states that if the trees grow branches the seller, who still owns the land, may not trim them. Although these branches now cover land that he did not sell, and when he sold the tree these branches were not there, by selling the tree he tacitly gives permission to the buyer to let the branches grow. Section 1c states that anything that grows from the tree above ground belongs to the buyer and anything below ground still belongs to the seller/landowner. Finally, if the trees die, the buyer may not plant there new trees. Since he didn’t buy the land, when the trees die he has totally lost his acquisition.",
"If he bought three trees, he has bought the ground [between them]. When they grow he may trim them, And what comes up whether from the stem or from the roots belongs to him (the. And if they die the ground is his. In section two we learn that the laws are different when one acquires three trees. In that case the person has acquired the land. If the trees should grown branches that overhang into the seller’s property he may trim them. Anything that grows from the tree, even below the ground, belongs to the buyer. Furthermore, if the trees die he may plant there new trees.",
"Questions for Further Thought:
• Why may the seller trim the trees if he sold three to the buyer but not if he sold two?"
],
[
"He who has sold the head of a large animal, has not sold the feet. If he sold the feet, he has not sold the head. If he sold the lungs he has not sold the liver. If he sold the liver he has not sold the lungs.
But in the case of a small animal: If he sold the head he has sold the feet. If he sold the feet he has not sold the head. If he sold the lungs he has sold the liver. If he sold the liver he has not sold the lungs.
Mishnah five deals with what is included in the sale of large and small animals.
This mishnah draws a distinction between large animals, such as cows, and small animals such as sheep or goats. In section one we learn that each part of a large animal is significant enough to be sold separately. In other words, if one sells one part of a large animal, he has not necessarily sold another part of the animal with it. However, with small animals some parts are sold with others and some parts are sold alone. For instance, if one bought the head, the feet are automatically included. Likewise if one bought the lungs, the liver is automatically included. However, the opposites are not true. If one bought the feet he has not automatically bought the head. If one bought the liver he has not automatically bought the lungs."
],
[
"There are four rules with regards to those who sell:
If one has sold good wheat and it turns out to be bad, the buyer can retract.
If he sold bad wheat and it is found to be good, the seller can retract.
[But if one sold] bad wheat and it is found to be bad, or good wheat and it is found to be good, neither may retract.
[If one has sold] dark wheat and it turned out to be white; Or white and it turned out to be dark; Or [if he sold] olive wood and it turned out to be sycamore wood; Or sycamore wood and it turned out to be olive wood; Or [if he sold] wine and it turned out to be vinegar; Or vinegar and it turned out to be wine; Either of them may retract.
Mishnah six begins to discuss certain ethical principles in the laws of selling and buying and their consequences on the validity of the sale. This is a topic which will be discussed through the middle of chapter six.
As stated at the beginning of the mishnah, there are four rules with regards to retracting a sale. These rules are contained in sections 1-4. (1) If a person sold something that was supposed to be good and it turned out to be bad, the buyer can retract. (2) If a person sold something that was supposed to be bad and it turned out to be good, the seller can retract. (3) If a person sold something and it turned out to be what he sold, the sale is final and no one may retract. (4) Finally, if a person sold something and it turned out to be different from what he sold, not necessarily better or necessarily worse, either of them may retract."
],
[
"Introduction Mishnah seven defines the precise moment when a sale occurs and is therefore not retractable.",
"If a man sold produce to his fellow and the buyer drew it towards him but did not measure it, [the buyer] has acquired [the produce]. If [the seller] had measured it but [the buyer] did not draw it towards him, he has not acquired [the produce]. If [the buyer] is clever he will rent the place [in which the produce is located]. According to Jewish law, movable items (as opposed to real estate) are acquired by taking hold of them (either by lifting them or by drawing them near) and not through the transfer of money. In other words, if Reuven gives Shimon money for his television set, the deal is not final until Reuven takes possession of the television set. If the set should break after Reuven has given the money, but still in Shimons possession, Shimon will have to return the money. If, on the other hand, Reuven took the television and did not pay the money, and then the set broke, Reuven will still owe Shimon the money. Our mishnah teaches that when a person buys produce, the moment he takes the produce is when the sale is final and not retractable. If the buyer wishes to ensure that the seller does not change his mind, he can rent the place where the produce is located. Thus when the buyer gives the money it is as if the produce is already in his possession and the seller may not retract the sale.",
"If a man bought flax from his fellow he has not acquired it until he has moved it from one place to another. If it was still attached to the ground, and he plucked any small quantity of it, he has acquired possession. With regards to flax, according to the mishnah it is not enough that he draw the flax towards him, he must carry it from place to place. Alternatively, if he purchased flax still attached to the ground, he can acquire the flax by plucking it."
],
[
"Introduction\nMishnah eight continues to define the precise moment when a sale occurs. The last section of the mishnah teaches the procedure for measuring out sold liquids.",
"If a man sold wine or oil to his fellow, and its value rose or fell, if [the price rose or fell] before the measure was filled up, it belongs to the seller, [and he may refuse to sell except at the higher price]. But if [the price rose or fell] after the measure was filled up, it belongs to the buyer [and he may refuse to buy except at the lower price]. With regards to the selling of wine and oil, the point in which the sale is final is the point at which the measuring container fills up. If the price of the wine or oil should rise before it fills up, the seller can demand the higher rate. If the price fluctuated after it was full, the buyer need only pay the lower rate.",
"If there was a middleman between them, and the jar broke, it is broken to [the loss of] the middleman. If a middleman acted as an agent for the buyer and seller and the measuring cup should break thereby causing the loss of the wine or oil, the middleman is responsible to recompense for the loss.",
"[After emptying the measure] the seller must let three more drops drip [for the buyer]. If he then turned the measure over and drained it off, what flows out belongs to the seller. The shopkeeper is not obligated to let three more drops drip. Rabbi Judah says: “[Only] on the eve of Shabbath as it becomes dark is he exempt.” When the seller pours the oil from the measuring cup into the vessel of the buyer, he must wait until three drops have spilled out. After this point, any oil that is stuck to the sides of the vessel belong to the seller. Since a shopkeeper is busy with many customers, he need not wait after pouring to ensure that three drops come out of the container. According to Rabbi Judah, this law is true only before the Shabbath, which is a time when the shopkeeper would be especially busy. At other times during the week, he too must wait for three drops to drip out of the measuring container.",
"Questions for Further Thought:
• Must the seller sell at the lower rate if the price went down before the measuring cup was full??
• Section three: Why might one have thought that the middleman would not be responsible if the measuring cup broke? If he was not responsible who would be?"
],
[
"Introduction\nMishnah nine deals with a father who sends his small child to buy oil from a shopkeeper and on the way home the son drops the flask of oil.",
"If a man sent his child to a shopkeeper with a pondion (a in his hand and he measured him out an issar’s (a coin worth half a worth of oil and gave him an issar in change and the child broke the flask and lost the issar, the shopkeeper is liable. Rabbi Judah declares him exempt, since the father sent the child for this purpose. And the Sages agree with Rabbi Judah that if the flask was in the child’s hand, and the shopkeeper measured the oil into it, the shopkeeper is exempt. In the scenario in our mishnah a father sends his child to a store to buy him some oil. The shopkeeper hands him a flask containing the requested oil and the change from the sale. According to the Sages, if the child should lose the oil or the coin on his return home, the shopkeeper is liable to pay back the father. Since a child is not responsible for his actions, the shopkeeper should have found a safer way of returning the oil and coin to the father. Rabbi Judah disagrees. According to him, since the father sent the child on such a mission, the father agreed to allow his child to deliver the oil and the change. The Sages agree with Rabbi Judah that the shopkeeper is not liable only in the case where the child came to the store with a flask in his hand. In such a case it is clear that the father intended that the child should deliver the oil, and therefore the shopkeeper will be exempt."
],
[
"The wholesaler must clean out his measures once every thirty days and the householder once every twelve months. Rabban Shimon ben Gamaliel says: “The rule is just the opposite.”
The shopkeeper must clean out his measures twice in the week and polish his weights once a week and clean out his scales after every weighing.
Mishnah ten deals with the proper maintenance of weights and measures to ensure that the purchaser does not receive less than he bought.
The Torah (Leviticus 19:35-36) forbids falsifying weights and commands a person to keep properly weighed and maintained weights and measures. Our mishnah is concerned with the proper maintenance of weights and measures. According to the anonymous opinion in section one, a wholesaler who uses his measures frequently must clean them out once every thirty days. This is to prevent the buildup on the sides of the containers which will reduce the amount purchased. A householder, who uses his measure less frequently, need clean them out only once a year. Rabban Shimon ben Gamaliel holds that the opposite is true. According to him the more frequently one uses the measures, the less buildup will accumulate. Therefore, a householder must clean them out once every thirty days and a wholesaler only once a year. A shopkeeper, who uses his weights frequently, must clean them out twice a week. In addition he must once a week polish his weights so that they don’t grow heavier and clean out his scales after every use so that they don’t accumulate buildup."
],
[
"Rabban Shimon ben Gamaliel said: “When is this so (that one needs to clean out? With regards to liquid measures, but with regards to dry measures it is not necessary.
[And a shopkeeper] must let the scales sink down a handbreadth [to the buyer’s advantage]. If he gave him an exact measure, he must give him his overweight, a tenth for liquid measures and a twentieth for dry measures.
Where the custom is to measure with small measures they should not measure with large measures and where the custom is to measure with large measures they should not measure with small measures.
Where the custom is to smooth down [what is in the measure] they should not heap it up, and [where the custom is] to heap it up, they should not smooth it down.
Mishnah eleven continues to deal with the weighing of produce.
Section one: Rabban Shimon ben Gamaliel qualifies the statements in the previous mishnah regarding cleaning out measures. These statements applied to measuring liquids, but measures used for dry goods need not be cleaned out with regular frequency, since the dry goods do not stick to the sides.
Section two: The custom was to let the buyer’s side of the scale, which contained the goods, sink one handbreadth lower than the seller’s side. If, however, one did not follow this custom, then the shopkeeper would be obligated to give the buyer either a tenth or a twentieth more than he purchased, depending on the nature of the produce.
Sections three and four: The last two sections teach that one must follow the customs that are typical in one’s place. This is true with regards to the size of the weights as well as the smoothing out or heaping up of the dry goods in the measuring cup. As long as people are consistent in their customs, buyers and sellers will know what they are doing and one will not cheat each other."
]
],
[
[
"Introduction\nMishnah one deals with a person who sells grain to another person and the seeds from that grain do not sprout when planted.",
"If a man sold grain to his fellow [and after it was sown] it did not sprout, even if it was flax-seed he is not liable. Rabban Shimon ben Gamaliel says: “If it was garden-seeds, which are not used for food, he is liable.” According to the anonymous opinion in section one, when a person sells grain to another person, if he does not specify that the grain is for planting, he is not liable if the grain doesn’t spout after planted. Even if he sold flax seed, which is usually sold for sprouting new flax plants, he is still not liable. Since he didn’t specify that he was selling grain to be planted, he can claim that he intended it to be used as food. According to Rabban Shimon ben Gamaliel if he sold him seeds that are always used for planting then he is liable if they do not sprout. Otherwise, he is not liable.",
"Questions for Further Thought:
• If a person sold seeds and they did not sprout is he liable to give the buyer back his money? How can one know the answer to this question from the mishnah?"
],
[
"Introduction\nMishnah two deals with a person who sells something to another person and some of the sold item is found not to be good. In both of these mishnayoth the question asked is can the buyer demand his money back.",
"If a man sold grain to his fellow, the buyer must agree to accept a quarter-kab of refuse with every seah. [If he bought] figs he must agree to accept ten that are eaten by worms for every one hundred. [If he bought] a cellar of wine, he must agree to accept ten jars gone sour in every one hundred. [If he bought] jars in Sharon, he must agree to accept ten which are not fully dry (and therefore are more easily in one hundred. When a person buys a large amount of a certain item he can expect that most of the items will be pure and in good working order, but he cannot expect that they will all be pure or in working order. If he buys grain and he finds that there is a certain amount of refuse in the grain, as long as the refuse is not more than a quarter-kab (about 350 grams) per seah (8.3 liters), he can’t demand his money back. This is about five per cent refuse. Similarly if he buys figs he can expect that some will be rotten; if he buys barrels of wine some will be sour and if he buys jars some will not be made properly. As long as the unacceptable part of the purchase is less than ten per cent, he cannot demand his money back. [Note: Sharon is on the coast of Israel, between Jaffa and Haifa.]"
],
[
"If a man sold wine to his fellow and it turned sour he is not responsible. But if it was known [to the seller] that his wine would [soon] turn sour, this is a mistaken purchase.
If he had said to him, “I am selling you spiced wine”, he is responsible for its remaining [good] until Shavuoth.
[If he said] it is old wine, it must be from last year’s. [If he said] it is vintage old wine, it must be from the year before last.
Mishnah three discusses rules concerning the sale of wine.
This mishnah is concerned with the responsibility of a wine seller to ensure the quality and preservation of the wine which he sells. If he sold him wine and it turned sour, the seller is not in general responsible, since wine is known to turn sour. If, however, the seller knew that the wine would soon turn sour and he did not warn the buyer, the seller is responsible to return the buyer’s money.
If he sold him spiced wine, he is responsible that it not turn sour until Shavuoth. Spiced wine was known to last during the winter but turn to vinegar due to the heat of the summer. Therefore the wine need only last until Shavuoth, the holiday celebrated at the beginning of the summer.
Finally the mishnah clarifies two terms used in the selling of wine. “Old wine” must be from last year’s batch and “vintage old wine” must be from the year before last. If the seller promised one of these types of wine and he gave the buyer wine that was not as old, the buyer can demand his money back."
],
[
"If a man sold his fellow a place to build him a house, so, too, if a man contracted with his fellow to build him a bridal-house for his son, or a widow’s house for his daughter, he must build it four cubits by six cubits (80 inches x 120, according to Rabbi Akiva.
Rabbi Yishmael says: “This is a cattle-shed”. He who wants to build a cattle-shed, should build it four cubits by six. A small house six by eight (120 x 160). A large house eight by ten (160 x 200). An eating hall ten by ten (200 x 200).
The height should be [the sum] of half its length and half its breadth. Proof of the matter is the sanctuary. Rabban Shimon ben Gamaliel says: “Should all [houses] be according to the building of the Sanctuary?”
Mishnah four discusses rules concerning the building of houses.
According to Rabbi Akiva (section one) a normal sized house is four cubits by six cubits. Hence, if one bought a plot for a house the seller must provide the buyer with a plot large enough to build on it such a sized house. Furthermore, if one contracted another person to build a house for his newly wedded son or widowed daughter who is returning to live with her father after the death of her husband, the builder must build a house four by six cubits.
Rabbi Yishmael says that a house this size is the size of a cattle-herd. Rabbi Yishmael then lists the sizes of houses. If a person, for instance, contracted another to build him a large house, then he must build one eight by ten cubits.
With regards to the height, the mishnah says that it must be the sum of half the width and half the length. A large house would be nine cubits high. The proof is the sanctuary that stood in the Temple in Jerusalem. According to I Kings 6:2, 17, the Sanctuary was 40 cubits long, 20 wide and 30 high. Rabban Shimon ben Gamaliel disagrees with using the Sanctuary as a precedent for normal houses. Assumedly Rabban Shimon ben Gamaliel would hold that a house should be as high as normal houses are in the area in which the house is built.
Note how small the houses are that are described in the mishnah. In ancient Israel the house was probably only used for sleeping and maybe eating when the weather did not permit eating outside. People owned very few possessions and therefore didn’t have need for much storage. Furthermore, there courtyards served as workplaces to do things such as cook and clean. Therefore there “houses” were the size of small rooms in modern American homes. On your next visit to Israel, if you visit an archaeological site notice the size of the homes and tell your tour guide about this mishnah!"
],
[
"Introduction\nThe mishnah which we will learn today deals with a person who owns a cistern behind another person’s property and hence requires a passage through the other’s property to get to his cistern or garden. The mishnah provides rules to both the property owner and the cistern owner to ensure that the latter receives access without trespassing on the former.",
"If he had a cistern behind his fellow’s house, he may go in and out only at the time when others are accustomed to go in and out. And he may not bring in his cattle and let them drink from his cistern, rather he must draw water and let them drink outside. He and the owner of the house should each make themselves a lock. This mishnah discusses the case where a person owns a cistern that exists behind another person’s property. In such a case the person is allowed to enter the other’s property in order to reach his cistern, but he must do so at the time when people customarily draw water from their cisterns. He is further restricted from bringing his cattle or other animals onto the other’s property. Rather he must draw the water and carry it outside. Finally, the mishnah demands that each of them make a lock. The cistern owner should make a lock for the cover of the cistern so that the house owner doesn’t steal any water. The house owner should make a lock on his door so that the cistern owner doesn’t enter when he is not allowed to."
],
[
"If he had a garden behind his fellow’s garden, he may go in and out only at the time when others are accustomed to go in and out. And he may not bring in merchants, or enter through it into another field. [The owner of] the outer garden may plant seeds on the path.
But, if with the other’s consent, he has been given a path at the side [of the other’s garden] he may go in and out when he wishes. And he may bring in merchants, but he may not enter through it into another field. And neither of them has the right to plant seeds on the path.
The mishnah which we will learn today is similar to yesterday’s mishnah, except it discusses access to a garden instead of a cistern.
This mishnah deals with a person who owns a garden behind another person’s garden. In other words in order to get to his garden he must go through the other person’s garden. The mishnah says that he is allowed to do so, but with certain limitations, similar to those we saw in the previous mishnah. First of all, he must go in and out at the time when people are accustomed to going to their gardens. Second, he may not bring merchants through his fellow’s property in order to buy his produce. Rather he must carry the produce out and the merchants can buy outside. Third, he may not use the path as a shortcut to other fields. Since the path was designated only to reach a certain field he is not allowed to use it to reach others. Finally, the owner of the outer garden is allowed to plant seeds on the path, even though this will make it more difficult for the owner of the inner garden to use the path. Since the path belongs to owner of the outer garden, he can do with it as he pleases.
If, however, the owner of the inner garden was given (possibly by the court) a path on the side of the outer garden, and the owner of the outer garden consented, then he may go there whenever he please. He may also bring in merchants to buy the produce, but he still may not use the path as a shortcut to other fields. Again, since the path was designated for reaching a certain field, he may not use it to reach others. Finally, since the path is intended only for walking, neither of them may plant on the it."
],
[
"If a public path passed through a man’s field and he took it and gave them [another path] by the side of the field, what he has given he has given and what he has taken for himself does not become his.
A private path is four cubits. A public path is sixteen cubits. The king’s path has no prescribed measure. The path to a grave has no prescribed measure. The halting places, according to the judges of Tzippori, should be four kab’s space of ground.
Mishnah seven deals with laws concerning the building and the selling of private and public paths.
In the scenario presented in section one a person had a path that passed through the middle of his field and decided that he would take that path and use it as part of his field and he would create a different public path on the side of his field. According to the mishnah the seizure of the public path is invalid and the public may continue to use the path in the middle of the field. In addition, the path given on the side of the field becomes public property, such that the public may also use that path.
The remainder of the mishnah standardizes the sizes of paths for the purposes of selling and buying. A private path is four cubits (about 2 meters) wide and a public path is 16 cubits (8 meters) wide. Therefore if a person were to sell a private path he would be selling a four cubit path, and if he sold a public path he would have sold a 16 cubit path. The mishnah additionally informs us that a king’s procession passing through another person’s field is permitted to take as wide of a path as needed. So too, if a funeral procession passes, the procession may cut as wide of a path as needed. Finally, we learn that halting places, which were places on the path of the funeral procession, where the mourners would stop in the course of a funeral procession in order to eulogize the dead, were generally four kab big (25 meters by 17 meters). If a person sold a “halting place” to another person this is the size of the land sold."
],
[
"If a man sold to his fellow a place in which to make a tomb, so, too, if a man was commissioned by his fellow to make a tomb, he must make the inside of the vault four cubits by six, and open within it eight niches, three on this side, three on that side, and two opposite [the doorway]. The niches must be four cubits long, seven handbreadths high, and six handbreadths wide.
Rabbi Shimon says: “He must make the inside of the vault four cubits by eight, and open within it thirteen niches, four on this side, four on that side, three opposite [the doorway] and one to the right of the doorway and one to the left.
He must make a courtyard at the opening of the vault, six cubits by six, space enough for the bier and its bearers. And he may open within it two vaults, one on either side. Rabbi Shimon says: “Four, one on each of its sides.”
Rabban Shimon ben Gamaliel says: “All depends on the nature of the rock.”
Mishnah eight deals with the building of tombs.
In the times of the mishnah people were buried in tombs, which consisted of caves with niches carved out of the wall. Each tomb could hold a number of bodies, with one body put into each niche. If someone contracted to build a tomb he must build one 4 by 6 cubits (2 by 4 meters) and make eight niches, each of a specified length, width and height. According to Rabbi Shimon, the tomb must be 4 by 8 cubits and contain 13 niches. In addition, he must build a courtyard over the tomb, big enough for the bier, a stretcher which carried the body and the people holding the bier. According to the anonymous opinion in 3a, the courtyard can serve two tombs and according to Rabbi Shimon it can serve four.
Rabban Shimon ben Gamaliel, section 4, disagrees with Rabbi Shimon and the anonymous opinion in section 1. According to Rabban Shimon ben Gamaliel the size of the tomb is not set in absolute terms, but depends on the nature of the rock. If it is hard rock he is only obligated to make eight niches in a 4 by 6 tomb, but if it is soft rock, he is obligated to make thirteen niches in a 4 by 8 tomb."
]
],
[
[
"If a man said to his fellow, “I will sell you a kor’s space of soil”, and it contained crevices ten handbreadths deep or rocks ten handbreadths high, these are not included in the measurement.
But if they were less than this they are included.
If he said to him, “About a kor’s space of soil”, even if it contained crevices deeper than ten handbreadths or rocks higher than ten handbreadths, they are included in the measurement.
The seventh chapter of Bava Batra deals with errors in the measurement of fields discovered after they were sold. The question asked is must the buyer return the error to the seller if the seller gave more than the stated amount and vice versa, may the buyer demand that the seller give more land if the land was less than the stated amount.
According to our mishnah if a person promises to sell exactly a kor’s space of soil (about 20,000 square meters) then any crevices which are lower than ten handbreadths or rocks higher than ten handbreadth’s are not counted as part of the field. Since they cannot be used for planting, they do not contribute to the measure of a kor’s space of soil. However, if he sold him “about a kor’s space of soil” these rocks and crevices are included. Since he didn’t say that he was selling precisely a kor’s space of soil the measurements do not have to be precise."
],
[
"Introduction\nMishnah two continues to deal with error’s made in the measurements of a field and the rules regarding returning the difference in such cases.",
"[If he said, “I will sell you] a kor’s space of soil as measured by a rope”, and he gave him less, the buyer may reduce the price; and if he gave him more, the buyer must give it back. But if he said, “Whether less or more”, even if he gave the buyer a quarter-kab’s space less in every seah’s space, or a quarter kab’s space more in every seah’s space, it becomes his; if [the error] was more than this, a reckoning must be made. If a person sold a piece of land by the measure of a rope, the expectation is that the land must be sold precisely. Hence, if the land was smaller the buyer may reduce the price and if the land was larger the buyer must give it back. As we shall see later in the mishnah, the buyer may under such circumstances, be required to pay more money for the extra land. If, however, the seller said that he was selling more or less a piece of land the size of a kor, than the margin of error is a quarter-kab. This works out to 1/24 of the land sold. If the error was under that margin, then the sale stands as is. If the error was greater then the buyer must return the surplus if the plot was larger or the seller must lower the price if the plot was smaller.",
"What does he (the give him back? Its value in money; but if the seller wants, he gives him back the land. And why did they say that he could give back its value in money? To strengthen the power of the seller, for if, in a field [containing a kor’s space] there would still have remained to him nine kab’s space, or, in a garden, a half-kab’s space, or according to Rabbi Akiva a quarter-kab’s space, the buyer must give back to him land. When the buyer returns the surplus sold to him, under certain circumstances he gives the seller extra money and does not return the land itself. This is considered to be a benefit to the seller. According to the strict letter of the law, if a kor’s space was sold, the buyer should not be forced to buy more land and he should therefore return the extra land itself. However, if the buyer were to return to him a very small piece of land, it would be unusable. Therefore, if the seller should so desire he can ask for money in return for the extra land. If, on the other hand, the land was large enough, as listed in the end of section 2c, then the seller can take back the land.",
"And not only must he give back the quarter-kab’s space, but all of the surplus. If the margin was slightly over the accepted margin of error, the buyer does not only return a small portion to place the error under the margin of error. Rather he returns the entire surplus. In other words if the margin of error is a quarter-kab per seah, and the surplus was a half-kab, the buyer returns the entire half-kab and not just a quarter.",
"Questions for Further Thought:
• What is the difference between the subject of mishnah one and the subject of mishnah two?
• The mishnah presents a leniency on the seller, namely that he has a choice to receive the surplus in money or in land. Why is the mishnah lenient on the seller, even though it might force the buyer to pay for more land than he intended?"
],
[
"Introduction\nMishnah three continues to deal with the measurement of fields for purposes of selling.",
"[If he said], “I will sell you [a piece of land] as measured by the rope, whether it is less or more” the condition “whether it is less or more” makes void the condition “as measured by the rope”. [And if he said], “Be it less or more, as measured by the rope”, the condition “as measured by the rope” makes void the condition “be it less or more”, according to Ben Nanas. In the scenario mentioned in both clauses of section one, the seller uses contradictory language when selling the field. As we learned in mishnah two, when the seller says that he is selling “as measured by the rope”, the intention is that the measurement be precise. On the other hand, if he says, “whether it is less or more” the intention is that the measurement will not necessarily be precise. According to our mishnah if he said both languages within one sentence the last language voids the first language. In other words, we assume that when he said the last language he intended to change his mind from the first language. Therefore the case will be adjudicated only based on the last language.",
"[If he said, I will sell you a piece of land] by its marks and its boundaries”, and the difference was less than a sixth, the sale stands. If it was as much a sixth the buyer may reduce the price. If a person sold a piece of land using its marks and boundaries as indicators to the place of the land, there is an allowance of up to one-sixth error. Beyond that, meaning more than one sixth error, the buyer may reduce the price if the error was to the seller’s favor (i.e. the land was smaller than stated). Alternatively, the buyer will return money or the property to the seller, if the error was to the buyer’s favor (i.e. the land was larger than stated)."
],
[
"Introduction\nMishnah four continue to deal with the measurement of fields for purposes of selling.",
"If a man said to his fellow, “I will sell you half of the field”, it must be divided between them into portions of equal value, and the buyer takes half of the field [which the other allots to him]. When a man sells half a field to another, they must divide the field into equal portions of monetary value. In a one hundred square meters field worth one hundred dollar, there may be a thirty square meter portion which is worth 50 dollars and a seventy square meter portion that is worth 50 dollars. In such a case the seller has a choice which piece of the field to keep. If he wishes he may keep the smaller, better field, or he may keep the larger, but of lesser quality field.",
"[If he said, “I will sell you] the southern half”, the field must be divided between them into portions of equal value, and the buyer takes the southern half. If, however, the seller stated which portion of the field he was selling, then they again divide the field into two, but this time the seller must give the specified portion. Since he specified which portion he was selling, he loses the right to decide which portion to give to the buyer.",
"He accepts responsibility for [providing the ground] for the dividing wall and the large and small ditches. How large is the large ditch? Six handbreadths. And the small ditch? Three handbreadths. The buyer is responsible for providing part of his land to make a dividing fence (as we learned in the first mishnah in Bava Batra) as well as part of his land to build ditches. These ditches would have surrounded the fence and would have prevented animals from jumping over the fence. The buyer’s part of land given for fences and ditches should be equal to the part given by the seller.",
"Questions for Further Thought:
• Section three: If the mishnah had not stated that the buyer must provide a share of his land on which to build the fence and dishes what might you have thought? In other words, is there grounds to think that the seller must solely provide the ground?"
]
],
[
[
"There are those who inherit and bequeath, there are those who inherit but do not bequeath, there are those who bequeath but do not inherit and there are those who neither bequeath nor inherit.
These inherit and bequeath: a father as to his sons and sons as to their father and brothers from the same father, these inherit and bequeath.
A man as to mother, and a man as to his wife, and the sons of sisters, inherit but do not bequeath.
A woman as to her sons, and a wife as to her husband, and brothers of the mother, bequeath but do not inherit.
And brothers from the same mother [but not father] neither inherit nor bequeath.
The eighth and ninth chapters of Bava Batra deal with the laws of inheritance. It states in Numbers 8-11 (JPS translation): “If a man dies without leaving a son, you shall transfer his property to his daughter. If he has no daughter, you shall assign his property to his brothers. If he has no brothers, you shall assign his property to his father’s brothers. If his father had no brothers, you shall assign his property to his nearest relative in his own clan, and he shall inherit it.”
The first two mishnayoth of our chapter deal with the order of inheritance, who inherits from whom and who bequeaths property to whom.
This mishnah lists in four categories all those who inherit from others and all those who, when they die, bequeath property to others.
Category one: The relationships listed in this category both inherit and bequeath. When a father dies, his sons inherit and if they should die without offspring, the father inherits from them. If a man dies and he has no children and his father is already dead his brother will inherit. So too if his brother dies in a similar situation , he bequeaths his property to his brother.
Category two: The relationships listed in this category are ones in which the person inherits but does not bequeath. A man inherits his mother but if he should die first, the mother does not inherit from him. So too, a man inherits his wife but if he should die his property is not bequeathed to her. If a man dies and his sister had children, they may inherit him if he has no closer relative. However, if they die, he does not inherit their property since it will pass to their father’s side and not their mother’s.
Category three: The relationships listed in this category are ones in which the person bequeaths but does not inherit. A woman bequeaths her property to her sons but she does not inherit from them if they should die first. Likewise, a husband inherits his wife’s property, but he does not bequeath his property to her. Finally, if a man dies and his closest relative is his sister’s children his property is bequeathed to them, but if they should die he cannot inherit from them.
Category four: The relationships listed in this category are ones in which the person neither bequeaths nor inherits. If a man dies and he leaves a brother who shares a mother but not a father he does not bequeath his property to him, nor does he inherit his property should the brother die. The inheritance lines go to each man’s father’s family and not to his relatives on his mother’s side."
],
[
"This is the order of inheritance: “If a man dies without leaving a son, you shall transfer his property to his daughter” (Numbers 27:8) the son precedes the daughter, and all the son’s offspring precede the daughter.
The daughter precedes the brothers and the daughters’ offspring precede the brothers.’
Brothers precede the father’s brothers and the brothers’ offspring precede the father’s brothers.
This is the general rule: whosoever has precedence in inheritance, his offspring also has precedence.
The father has precedence over all his offspring.
Mishnah two lists the order of the inheritance, whose inheritance takes precedence over others.
This mishnah deals with the order of inheritance as mentioned in the verse, quoted in section one. A son precedes a daughter in inheritance. In addition, if the son had children they inherit even if the son is no longer alive. In other words grandchildren inherit directly from their grandfather if the father is no longer alive. As stated in the general rule in section five, offspring in essence take the place of the supposed inheritor. So too if the daughter has offspring and she is no longer alive, they will inherit in place of the brothers of the deceased. If the brothers of the deceased have offspring and the brothers are no longer alive, they will inherit in place of the deceased man’s father’s brothers.
Finally, the mishnah teaches us one other piece of information that we might have assumed from the Torah but is not explicit. The Torah lists the father’s brothers as being on the line of inheritance but it does not list the father himself. Our mishnah states that if a person dies without children, his or her father becomes the primary inheritor. Likewise, if a grandchild would die with no offspring and the grandchild’s father is also not alive the grandfather would inherit from his granchild."
],
[
"Introduction\nIn Numbers 27 the story is told of Zelophehad’s daughters. Zelophehad died with no sons and his daughters came to Moses to request that they inherit Zelophehad’s property. Moses brings the request to God who affirms that if there are no sons then the daughters are the next in the line of inheritance. Mishnah three deals with the case of Zelophehad’s daughters.",
"The daughters of Zelophehad took three portions of the inheritance (of the Land of: The portion of their father who was of them that came out of Egypt; And his portion among his brothers from the property of Hepher (Zelophehad’s; And, in that he ( was the first-born, he took a double portion. This mishnah lists how many portions of land the daughters of Zelophehad received. According to the mishnah the Land of Israel was divided according to the adult males who left Egypt (and not according to those who actually arrived to the Land of Israel). Since Zelophehad and his father, Hepher, both left Egypt, they both would have received a piece of land in Israel. In addition, Zelophehad, being the first born, would have taken a double portion in the inheritance he received from Hepher. These three portions, Zelophehad’s own portion and the two portions he inherited from Hepher, all would have passed down to the daughters of Zelophehad when he died.",
"Questions for Further Thought:
• How does this mishnah connect with the subject of the previous mishnah? In other words why is this mishnah here and not somewhere else in the chapter?"
],
[
"Introduction\nMishnah four deals with the difference between the inheritance of the son and the daughter.",
"The son and the daughter are alike concerning inheritance, save that the [firstborn] son takes a double portion of the father’s property but he does not take a double portion of the mother’s property. And the daughters receive maintenance from the father’s property but not from the mother’s property. This mishnah lists the differences between sons and daughters with regards to inheritance. (Note: daughters only inherit when there are no sons). The first difference is that the eldest son inherits the double portion, whereas the eldest daughter would inherit equally with younger sisters. Furthermore, the son inherits a double portion of his father’s inheritance but not of his mother’s inheritance. The law of the double portion are found in Deuteronomy 21:15. If a man should die and leave sons and daughters, the sons inherit the estate but the minor daughters are maintained, i.e. fed, clothed, housed and in general provided for, by the estate of the deceased father. We will learn this principle in chapter nine. Here the mishnah states that the daughters, when receiving maintenance payments, receive them only from the estate of the father and not from the estate of the mother.",
"Questions for Further Thought:
• Section one is actually worded in a somewhat difficult manner. What makes it difficult?"
],
[
"Introduction\nMishnah five deals with a father’s ability to decide which of his inheritors will inherit.",
"Our mishnah deals with a father who does not want to simply let the inheritance fall in its proper order (as learned in the first two mishnayoth of the chapter) but rather wants to divide his property in another fashion.",
"If a man says, “So and so, my firstborn son, shall not receive a double portion”, or “So and so, my son, shall not inherit with his brothers”, he has said nothing, for he has made a condition contrary to what is written in the Torah. The Torah demands that the eldest son receive a double portion and each of the other sons divide the money equally. A father’s attempt to lessen the portion of the eldest son or increase the portion of the other sons would be, therefore, a condition that goes against Torah law, and such a condition is invalid.",
"If a man apportioned his property to his sons by word of mouth, and gave much to one and little to another, or made them equal to the firstborn, his words are valid. But if he had said [that it should be so] “by inheritance”, he has said nothing. If he had written down, whether at the beginning or in the middle or at the end [of his will] that it should be as a gift, his words are valid. However, the fact that a man cannot make a change in the inheritance law does not mean that he cannot apportion his money as a present to his children while he is still alive. As long as the document or his verbal contract states that the money is being passed to his children as a present while he is still alive and not as an inheritance after his death, the transaction is valid. The Torah’s laws govern inheritance, the transfer of money after death and not presents given during life.",
"If a man said, “So and so a man shall inherit from me” and he has a daughter; or “My daughter shall inherit from me”, and he has a son, he has said nothing, for he has made a condition contrary to what is written in the Torah. Rabbi Johanan ben Baroka says: “If he said [that so and so shall inherit from me] of one that was qualified to inherit from him, his words are valid, but if of one that was not qualified to inherit from him his words do not remain valid.” Similar to the law in section one, here too a person attempts to change the laws of inheritance from the Torah, by saying that a stranger will inherit when he has a daughter or that his daughter will inherit when he has a son. Again, we learn that such a stipulation, contrary to the laws of the Torah, is invalid. Rabbi Johanan ben Baroka disagrees. He says that as long as the intended inheritor is a legal inheritor, meaning one of those on the list in mishnah one and two, then a person can bypass the primary inheritor and give to the secondary one. In other words Jacob could state that instead of his sons inheriting his property his daughter Dina could inherit, since she is on the lines of inheritance. He could not however, state that a stranger to the family would inherit in place of his sons.",
"If a man wrote away his property to others and passed over his sons, what he has done is done, but the Sages are not comfortable with it. Rabban Shimon ben Gamaliel says: “If has sons did not behave properly, it should be counted to his credit.” Finally, the mishnah states that although a person can give away his property to strangers before he dies, thereby leaving no inheritance for his sons, the Rabbis were not happy with such an action. The laws of inheritance in the Torah are not just guidelines for inheriting should the situation arise, they are the proper way in which property would be transferred from generation to generation. Rabban Shimon ben Gamaliel lastly notes, that if the sons were engaged in improper behavior, it is meritorious for the father to ensure that they receive no inheritance."
],
[
"Introduction\nMishnah six deals with a father’s ability to declare that a certain person is either his son or his brother in order that he should be his legal inheritor.",
"If a man said, “This is my son”, he is believed. If [he said], “This is my brother”, he is not believed, yet the other may join him in his portion. If he died the property returns to its place. If he inherited property from elsewhere the other’s brothers inherit it together with him. If a man states that a certain person is his son, and therefore should inherit his property along with his other sons, he is believed. Since he could give his property to this person in any case, we allow him to claim that the person is his son so that he may receive a portion of the inheritance. However, he is not to believed to say that a person is his brother and therefore should share in the inheritance from his father. Since, by saying that a person is his brother and deserves part of the inheritance he would be taking away from the shares of the other brothers, he is not believed. Suppose a case in which Reuven and Shimon come to split an inheritance and Shimon claims that Levi is his brother. If they were to split equally, Reuven would receive a third of the inheritance and not the half, which would be his had Shimon been his only brother. Therefore Reuven takes half and Shimon and Levi split the other half. If Levi were to die, the money would revert to Shimon. Since the money was taken out of Shimon’s share in the first place, the money would eventually revert to him and not to Reuven. If Levi were to receive money from somewhere else (i.e. not from his father’s inheritance) and then die, Reuven and Shimon would both inherit. Since Shimon claimed that Levi was his and Reuven’s brother he must share the inheritance from Levi with Reuven.",
"If a man died and a testament was found bound to his thigh, this counts as nothing. But if [he had delivered it and] through it granted title to another, whether of his heirs or of those who are not his heirs, his words are valid. If a man died and a testament (will) was found on him, the will is invalid. Although we may assume that the man wrote the document we do not know if he intended to give it to the intended person. Since he may have written it and changed his mind, the document is not valid. If, however, he gave the document to someone else before he died the document is valid. Since it was given while the person was alive, it is a proper will and it will be carried out."
],
[
"Introduction\nThe first half of mishnah seven deals with laws concerning a father who gives money to his son before his death, thereby circumventing the lines of inheritance as prescribed in the Torah. The second half of the mishnah deals with the division of the inheritance amongst the sons.",
"The first two sections of the mishnah deal with a father who wrote over his property to one of his sons before his death in order to avoid the property falling equally to all of his sons at the time of his death. The intent of the father’s action is for the money ti stay in the possession of the father until he dies but to already partly belong to the son to whom the property was written over. In this way the son does not have to split the property with the other sons.",
"If a man writes over his property to his son, he must write, “From today and after my death”, according to Rabbi Judah. Rabbi Yose says, “He need not do so.” In order to accomplish such an action the father must write in the document that it is valid “from today and after my death”. He writes “from today” so that the property will already be transferred before his death, and thereby not subject to the laws of inheritance which take effect only after death. He writes, “after my death” so that he can continue to use the property until he dies. This is Rabbi Judah’s opinion. According to Rabbi Yose he need not write “from today” in the document. Since the document contains the date on which it was written, it is clear that the transfer occurs before his death, and is not subject to the laws of inheritance.",
"If a man writes over his property to his son to be his after his death, the father cannot sell it since it is written over to the son, and the son cannot sell it since it is in the possession of the father. If his father sold the property, it is sold [only] until he dies; if the son sold the property, the buyer has no claim until the father dies. The father harvests the crops and gives them to whomever he wishes, and what he has left harvested belongs to [all] his heirs. After the document is written the property is neither fully the son’s nor fully the father’s. Neither can sell the property; if the father were to do the sale is only valid until he dies at which point the property will belong to the son. If the son were to sell the sale is valid only after the father dies. Until then the property is in the father’s possession. The father may continue to harvest the produce from his fields and he may even give it to others as he so desires. If he dies and leaves harvested produce, it is subject to the laws of inheritance and not solely to the son to whom the father wrote his property.",
"If he left elder sons and younger sons, the elder sons may not take care of themselves [from the estate] at the expense of the younger sons, nor may the younger sons claim maintenance at the cost of the elder sons, rather they all share alike. If the elder sons married [at the expense of the estate] so too the younger sons may marry [at the expense of the estate]. If the younger sons said, “We will marry in the way you married”, they do not listen to them, for what their father gave them, he has given. In this section the father died without writing his property over to one son. In such a case the inheritance is divided equally. The elder sons cannot take care of themselves at the expense of the younger sons. Even though the elder sons need more clothing than the younger sons they may not use more than their share. So too, the younger sons may not claim more food than their share, even though younger children eat and waste more food. With regards to providing a marriage feast for the son and his bride and providing the young couple with a place to live, the younger sons can claim to receive the same amount from the inheritance that the elder sons receive. If, however, the elder sons married while the father was still alive, the younger sons cannot claim that they should receive as much as the elder sons received. Since the elder sons married while the father was alive the money their father gave them for the wedding was a gift and does not impact on the equal division of the inheritance.",
"Questions for Further Thought:
• Section 2a: Why is produce which is harvested before the father dies subject to the laws of inheritance whereas the rest of the father’s property is transferred to the son to whom the property was written over?"
],
[
"If he left elder daughters and younger daughters, the elder daughters may not care for themselves at the cost of the younger daughters, nor may the younger daughters claim maintenance at the cost of the elder daughters, rather they all share alike.
If the elder daughters married [and took each her dowry from the common inheritance] so too the younger daughters may marry [and take each a dowry from the common inheritance].
If the younger daughters said, “We will marry in the way you married”, they do not listen to them, for what their father gave them, he has given.
A greater stringency applies to daughters than to sons, since daughters can claim maintenance at the cost of the sons, but they cannot claim maintenance at the cost of the [other daughters].
Mishnah eight deals with the division of the inheritance when daughters inherit.
The first three sections of this mishnah are identical to the last section of yesterday’s mishnah. The only difference is that while the father customarily pays for the wedding of his son, to his daughter he gives a dowry. Therefore in section two and three the daughters are arguing over dowries and not over the costs of the wedding.
Section four: We will learn in the first mishnah of the next chapter that if a father left sons and daughters and he did not have a large enough inheritance for the daughters to be maintained and the sons to inherit, the daughters’ maintenance (food, clothing and shelter) takes precedence over the sons’ inheritance. However, if he left only daughters, the younger daughters cannot claim maintenance at the expense of the elder daughters. In other words, the law with regards to daughters is more strict [vis a vis the other daughters] than the law with regards to sons."
]
],
[
[
"Introduction\nThe ninth chapter of Bava Batra continues to deal with the laws of inheritance, the subject discussed in chapter eight. The first mishnah of the chapter deals with the division of the inheritance between sons and daughters.",
"If a man died and left sons and daughters, and the property was great, the sons inherit and the daughters receive maintenance. But if the property was small the daughters receive maintenance and the sons go begging at people’s doors. Admon says: “The son may say, ‘Must I suffer a loss because I am a male’”. Rabban Gamaliel says: “I approve of Admon’s opinion.” As we have learned in several mishnayoth in the previous chapter, when a man dies and he has sons who survive him, the sons are the sole inheritors of his property. However, the surviving daughters have a right to continue to receive maintenance (food, clothing, shelter and a dowry) from his estate until they reach majority age and are married. Our mishnah teaches that if the property was sufficient for both an inheritance and for the maintenance of the daughters, then the sons inherit and the daughters receive maintenance. If, however, there was not enough property, the daughters maintenance takes precedence over the sons inheritance. In such a case the sons will have to beg at people’s doors. Admon disagrees and says that the son may claim that he should not lose out just because he is male. Rabban Gamaliel agrees with Admon.",
"Questions for Further Thought:
• Why does the anonymous opinion hold that the daughters receive support from their dead father’s estate while the sons must beg, at least in a case where there is insufficient funds for all? Why not vice versa?"
],
[
"If a man left sons and daughters and one that was of doubtful gender, if the property was great the males may push him (the one of doubtful onto the females; if the property was small the females may thrust him onto the males.
If a man said, “If my wife shall bear a male he shall be given 100 zuz”, and she had a male, he receives 100 zuz. [If he said, “If my wife shall bear a] female she shall be given 200 zuz”, and she had a female, she receives 200 zuz. [If he said, “If may wife shall bear a] male he shall be given 100 zuz and if a female 200 zuz” and she had a male and a female, the male receives 100 zuz and the female 200 zuz. If she had one of doubtful gender, he does not take. But if he said, “Whatsoever my wife shall bear shall be given [such an amount], he receives.
If he [the one of doubtful gender] was the only heir, he inherits everything.
Mishnah two deals with the division of the inheritance when one of the children is not discernibly male or female and other laws concerning such a child.
This mishnah discusses the rights of a “tumtum” which is the Hebrew term for a child who does not have sexual signs of being a male or female. If there is a large inheritance, and therefore the sons will take their part, the sons can tell the “tumtum” that he is not a son and therefore he can only receive maintenance with the other daughters. If, however, there is small estate, and it is not sufficient to support all of the children, the daughters can tell him that he must go begging with the other sons. These two laws are based on the principle, common to many Rabbinic laws, that the burden of proof is on the plaintiff. In order for the “tumtum” to take part of the inheritance he must prove that he is male, which he cannot. In order for him to receive maintenance when the estate is small, he must prove that he is female, which he cannot.
Section two deals with a father who makes a promise to give his child a present when the child is born and bases the size of the present on the gender of the child. Sections 2, 2a and 2b are straightforward and need no explanation. According to section 2c if, in any of the aforementioned cases, the woman were to bear a “tumtum” the child would not be able to claim the present. Since the present was based on the child’s gender and the child cannot prove a gender, the child cannot make a claim on the gift.
If, however, the father had said that he wished to give a gift to anything that the wife had, then he has not based the gift on the child’s gender. In such a case even a tumtum would receive the gift. Finally the mishnah states that if the “tumtum” were the only inheritor, s/he would inherit."
],
[
"If a man left elder sons and younger sons, and the elder sons improved the property, they improve it to the common benefit. If they said, “See, what our father has left us, lo, we will work and from that we will eat”, they improve it to their own benefit.
So, too, if a woman (a improved the property, she improves it to the common benefit. If she had said, “See, what my husband left to me, lo, I will work and from that I will eat”, she improves it to her own benefit.
Mishnah three discusses sons who share an inheritance and some of the sons improve the value of the property. The issue discussed is are the sons who improved the value the only ones to profit or is the profit divided equally between all of the inheriting sons. A similar situation is discussed in which a widow improves the value of her dead husband’s property.
In the scenario mentioned in our mishnah Jacob died and left four sons, two who were older, Reuven and Shimon, and two who were younger, Levi and Judah, and Jacob owned a piece of real estate worth 1000 dollars. If Reuven and Shimon were to take this land and improve it, thereby doubling its value, each son’s portion would double. Even though Levi and Judah did not work to improve the value, since it was their inheritance as well, they receive some of the benefit. If, however, Reuven and Shimon said that they were increasing the value of their portions only, than they alone receive the increase in value.
Similarly if a widow were to increase the value of her dead husband’s estate, she would share in the increase with the sons of her husband, or the other heirs. However, if she were to state that she is improving her own lot, than she herself would receive the benefit of her work.
Note: a widow does not inherit from her husband. She is, however, entitled to receive maintenance from her husband’s estate. Maintenance payments will be based on the value of the estate: if there is a large estate she will receive better quality food, clothing and shelter. Therefore, it is in her interest to increase the value of the estate."
],
[
"Introduction\nMishnah four discusses partnerships between brothers sharing their father’s inheritance and the question of the division of the profits and losses to the partnership.",
"If brothers were partners and one of them fell into a public office, it falls to the common benefit. If brothers form a partnership to live off their father’s inheritance and one of the brothers is appointed to a job with the government, his salary is split amongst the brothers. The mishnah assumes that he received his job on account of his father’s prestige and therefore the job is in essence part of the inheritance.",
"If one [of them] got sick and needed healing, his healing is at his own expense. If one of the brother’s got sick, he must pay out of his own share for his healing. Since the sickness is not connected to the inheritance the cost of the healing is not taken out of the inheritance.",
"If certain of the brothers in their father’s lifetime had made a present as groomsmen [at their father’s expense] and [after his death] the present was restored to them, it is restored to the common benefit, for the groomsmen’s gift [counts as a loan] and can be recovered in a court of law. But if [one of the brothers in his father’s lifetime] sent his fellow jars of wine or jars of oil, they cannot be recovered through a court of law, since they count [not as a loan but] as a charitable deed. In the time of the mishnah it was customary for people to send wedding gifts to the bride and groom in order to help them celebrate the seven days of wedding festivities. These wedding gifts were not exactly gifts but rather more like loans, for it was the law that one who received the gift would have to himself send a gift when the original sender got married. If some of the brothers had used their father’s money to send wedding gifts when the father was still alive, when the presents are received in return at the time of the sons marriage, they are split amongst all of the brothers, even those who did not send the gifts and who are not getting married. Since wedding gifts are like a loan, it is as if they never left the possession of the father, and they are therefore subject to the laws of inheritance. In the last clause the mishnah distinguishes between wedding presents and regular presents. If a person gave another person a jar of wine or oil as a present, these cannot be recovered like a loan, for they a form of charity.",
"Questions for Further Thought:
• Section one: What would be the law if the brother received a public office not due to his father’s prestige but rather due to his own abilities? Would he still have to share the salary with his brothers?
• Section three: If wedding gifts were more like loans why did people give them?"
],
[
"If a man sent betrothal gifts to his father-in-law’s house, and he sent there 100 maneh (10,000 and he ate a betrothal meal of but one dinar, [and he afterward divorced his wife] they (the betrothal are not recoverable. But if he did not eat the betrothal meal, they are recoverable.
If he sent many betrothal gifts in order for them to return with her to her his house [when he marries her], they are recoverable. If he sent few betrothal gifts which were to be used in her father’s house, they are not recoverable.
Mishnah four, which we learned yesterday, discussed some laws concerning gifts given by groomsmen to the bride and groom. Mishnah five discusses a related subject, gifts given by a man to his fiancee, after betrothal but before the marriage.
In Jewish law there are two stages to the marriage process, betrothal and marriage. After betrothal the woman continues to live in her father’s house and only moves to her husband’s house at the time of marriage. In our mishnah the husband sends betrothal gifts to the father’s house, a common custom in the time of the mishnah. The mishnah discusses the husband’s ability to recover these gifts should he divorce his fiancee before marrying her (in Jewish law betrothal is binding and therefore requires divorce to sever the tie). According to our mishnah if he ate a celebratory betrothal meal at his father-in-law’s house, he cannot recover the betrothal gifts. The meal is provided by the father-in-law in return for the gifts. Even if the trade is unequal, the deal is sealed and the gifts are unrecoverable.
If he sent many gifts and it was obvious that the husband expected his fiancee to eventually bring the gifts back with her when she came his house at the time of marriage, then the gifts are recoverable if he should divorce her before marriage. Since the husband did not intend to give these gifts as permanent gifts, but rather for them to be “on loan” until they returned to him with her at the time of marriage, he can recover them. If, however, he gave few gifts, then the gifts were intended to be used up in her father’s house. In such a case since he never had an expectation to receive them in return, he cannot recover them should he divorce her before marriage."
],
[
"Introduction\nMishnah six returns to discuss the major topic of the chapter, inheritance law. The specific subject of this mishnah is laws governing a person who gives away his property while on his death bed and then recovers from his illness. The question is can he recover his property.",
"Generally speaking when a person gives another person a piece of property the giver cannot change his mind once the document is written and signed. However, if the giver was a dying man he may change his mind and recover his property should he recover from his illness. Since we assume that he intended to give the gift only if he were to die, if he were not to die the gift is annulled.",
"If a man who lies dying wrote over his property to others [as a gift] and kept back any land whatsoever, his gift remains valid [even should he not die]. If he did not keep back any land whatsoever, his gift does not remain valid [if he should not die]. If, when he wrote the gift document he retained some land for himself, then we can assume that this is not truly the gift of a dying man. A dying man does not retain any land for himself. Therefore, if he should recover from his illness, the gift is not recoverable. If, however, he did not retain any land for himself, then this is the gift of a man who believed himself about to die. In such a circumstance the gift is recoverable should he recover from his illness.",
"If it was not written in the document, “who lies dying”, but he said that [he had written the document] while he lay dying and they (those who received the said that he was healthy [when he wrote the document], he must bring proof that he had been dying, according to Rabbi Meir. But the sages say: “He who makes a claim against his fellow bears the burden of proof.” In the scenario in this section the document did not state that he was a dying man and the man did recover from his illness. At that point he claimed that he had written the document as a dying man and therefore the gift is retracted. The recipients of the gift claim that he gave it as a healthy man and therefore the gift is not retractable. According to Rabbi Meir the gift goes to the recipients. Since the person’s last confirmed status is as a healthy man (his current status), we can assume that he was healthy when he wrote the document, and therefore the gift is not a gift given by a dying man. According to the sages, the burden of proof lies on the pursuant, in this case the recipients who wish to receive their promised gift from the giver. Since they cannot prove that he was healthy when he wrote the document he is not obligated to give them the gift.",
"Questions for Further Thought:
• Why does the dying man have to divide up his property before he dies? Why can’t he just say that the gift will not be transferred until after he dies, thereby avoiding the problem of recovering from his illness after having given away his property?"
],
[
"Introduction\nOur mishnah deals with the formal and legal way in which a person may transfer property. In the first chapter of Tractate Kiddushin the Mishnah teaches these laws more extensively. Our mishnah deals specifically with how a dying person transfers his property before s/he dies so that the property will not be subject to the laws of inheritance. In Hebrew the formal transfer of property is called “kinyan”. (See Steinsaltz reference guide, page 254).",
"The first two sections of our mishnah discuss a person who tries to transfer his property to another person orally without using a written document or other formal means of kinyan. According to Rabbi Eliezer, whether the man is healthy or dying, he must perform the transaction in the usual manner that transactions are done, i.e. with kinyan. If he wishes to cause acquisition of land he must either receive money from the acquirer, use a document or the acquirer must demonstrate physical possession of the land (see Bava Batra, chapter 3). If he wishes to cause acquisition of movable property, i.e. things, the acquirer must actually take possession of them by drawing them towards him. In other words, according to Rabbi Eliezer, merely saying that one is giving something to another person does not cause the acquisition to take effect. The Sages respond to Rabbi Eliezer with a story that demonstrates through a precedent that a dying person may indeed transfer their possessions orally. In the story the mother of the sons of Rokhel declared that her expensive veil was to go to her daughter (and not to her sons who would inherit her when she dies). The Sages accepted her words and gave the veil to her daughter, even though no formal acquisition (kinyan) had been made. To this Rabbi Eliezer responds that the sons of Rokhel were wicked and therefore the Sages accepted that the veil should belong to her daughter. In other words the story is exceptional and therefore does not serve as a proper precedent.",
"The Sages say: “On a Sabbath his words remain valid, since he cannot write, but not on a weekday.” The sages say that a dying person can divide his property orally on Shabbat, since it is forbidden to write. If, however, he were to do this during the week, when it is permitted to write, the transfer is invalid. Rabbi Joshua disagrees. He says that if they said that he could do this on Shabbat all the more so he may orally divide his property during the week. Rabbi Joshua’s reasoning is that since he could write and transfer property during the week, he is allowed to do so even without a formal document or kinyan.",
"Rabbi Joshua says: “If they have stated this rule on the Sabbath, how much more so on a weekday.” Similarly, others may acquire possession on behalf of a minor, but not on behalf of an adult. Rabbi Joshua says: “If they have stated this rule with regards to a minor, how much more so does the rule apply to an adult. Rabbi Joshua and the Sages have a similar dispute on another issue of halakhah. According to the Sages, one may acquire possession on behalf of a minor but not on behalf of an adult. In other words Reuven can legally accept a gift on behalf of Joseph who is a minor, but not on behalf of Shimon who is an adult. Since Joseph cannot legally take possession of the gift himself Reuven may do it on his behalf. Shimon who can legally take possession of the gift must do so on his own. Rabbi Joshua says that if Reuven can acquire possession for a minor, all the more so may he do so for an adult.",
"Questions for Further Thought:
Explain Rabbi Joshua’s opinion in section three in light of his opinion in section two. Why did the editor of the mishnah see that these two disputes between the Sages and Rabbi Joshua were similar and therefore place them in one mishnah?"
],
[
"Introduction\nThe final three mishnayoth of chapter nine deal with cases of doubtful inheritances where both the inheritor and the one from whom he inherits die in one incident. We will explain this scenario in our explanation to each individual mishnah.",
"If the house fell down on a man and his father, or upon a man and any from whom he inherits, and he was liable for his wife’s ketubah or to a creditor: the father’s heirs say, “The son died first and the father died afterward”, and the creditors say, “The father died first and the son died afterward.” The School of Shammai says: “Let them split [the property].” The School of Hillel says: “The property remains in its former status [in the hands of those who inherit the father].” In the scenario in our mishnah a man and his father (or someone else from whom he inherits) die in one accident (a house falls on them). We do not know who died first, Jacob, the father or Reuven, the son. The son had creditors to whom he owed money or a wife with a ketubah, a marriage contract, guaranteeing her money upon death or divorce. If Jacob died first, then Reuven would inherit and the wife or the creditors could collect their debts from Jacob’s estate. Since Reuven owned his father’s estate upon his death it is subject to Reuven’s debts. This will be especially important if Reuven died without any money of his own. Only if Jacob died first will Reuven’s creditors or wife be able to claim any money. Since this scenario is best for the creditors and for the wife, they claim that Jacob died first. If, however, Reuven died first, then he never inherited from Jacob. Jacob’s property will go in such a case to his other inheritors and the creditors or wife will not be able to claim anything from Reuven. Since this scenario is best for Jacob’s inheritors, they claim that Reuven died first. The School of Shammai says that in such a scenario the creditors, wife and inheritors of the father split the disputed inheritance of the father. The School of Hillel holds that the money remains with under the assumption of belonging to its previous verifiable owner until proven otherwise. Since the last verifiable owner of the property is the father, his inheritors receive the property until the creditors or wife can prove that the father died first. Question for Further Thought: Upon what abstract principle is the School of Shammai’s decision based? Upon what abstract principle is the School of Hillel’s decision based?"
],
[
"Introduction\nMishnah nine continues to deal with the topic of doubtful inheritances in which it is unclear who died first, the inheritor or the one from whom he inherits.",
"If the house fell down on a man and his wife, the husband’s heirs say, “The wife died first and the husband died afterward” and the wife’s heirs say, “The husband died first and the wife died afterward”. The School of Shammai says: “Let them split [the property].” The School of Hillel says: “The property remains in its former status the Ketubah to the husband’s heirs and the property that comes in and goes out with her to her father’s heirs.” In our mishnah Jacob and Rachel both died in the same accident and it is unclear who died first. If Rachel died first then Jacob would inherit all of her property, since a husband inherits from his wife. If Jacob inherited Rachel’s property then when he died his inheritors would inherit her (as well as his) property. Therefore, Jacob’s inheritors claim that Rachel died first. If, on the other hand, Jacob died first, Rachel’s inheritors would inherit her property. (They would not inherit Jacob’s property since a wife does not inherit from her husband). Therefore, Rachel’s inheritors claim that Jacob died first. As in the previous mishnah the School of Shammai says that in such a case the money is to be split. The School of Hillel again states that the money reverts back to its last verifiable owner. The ketubah (marriage contract) money last belonged to the husband (it is his until he pays it to her) and therefore his inheritors receive that money. The woman’s dowry which she brought into the marriage and over which the husband did not take title, belonged to the wife. Therefore her inheritors receive this money.",
"Questions for Further Thought:
• How is the School of Hillel’s opinion in mishnah nine consistent with their opinion in mishnah eight?"
],
[
"If the house fell down on a man and his mother, they (the Schools of Shammai and agree that the they split the property.
Rabbi Akiva said: “I agree here, that the property remains in its former status.” Ben Azzai said to him: “We already are distressed over those things upon which there is disagreement, and you are coming to bring disagreement on the points in which they agree.”
The final mishnah of chapter nine continuse to deal with the topic of doubtful inheritances in which it is unclear who died first, the inheritor or the one from whom he inherits.
In our mishnah a man and his mother (who was a widow) died in the same accident and it is unknown who died first. Furthermore, the man had no sons who would inherit him and the woman had no other sons to inherit from her. If the son died first then the mother’s other inheritors would receive her inheritance. If the mother died first then the son would inherit her and his inheritors would receive her (as well as his) inheritance. In such a case the School of Shammai and the School of Hillel agree that all of the inheritors split the property. Since they are all making claims based on inheritance and none of them had prior possession of the property such that we could say that the property reverts to its previous status (as was the School of Hillel’s opinion in previous mishnayoth), there is nothing left to do but split the property.
Rabbi Akiva believes that even in this case the property reverts to its previous status. According to Rabbi Akiva when this woman was originally widowed she reverted to being part of her father’s family (as opposed to her husband’s family). Therefore, when she died, the property is assumed to belong to the inheritors from her father’s side, regardless of whether they can prove that the son died first.
Ben Azzai responds to Rabbi Akiva that it is distressing enough that the Schools of Shammai and Hillel disagreed on so many issues. In Ben Azzai’s opinion Rabbi Akiva should not create a new dispute where previous scholars were in agreement."
]
],
[
[
"A simple document has the signatures within (at the bottom of the; a sewn document has signatures behind [each fold].
If in a simple document its witnesses signed behind, or if in a sewn document its witnesses signed within, they are invalid. Rabbi Hanina ben Gamaliel says: “If in a sewn document its witnesses signed within, it is valid, since it can be made into a simple document.” Rabban Shimon ben Gamaliel says: “Everything should follow local custom.”
The tenth chapter of Bava Batra deals with laws concerning the proper writing and execution of documents.
An “simple” document is one in which the text is written at the top of the page and the witnesses sign on the bottom, similar to forms used today. A “sewn” document is one in which a few lines of text are written, and then the text is folded over and sewn at the fold and then signed on the back of the document. This process is repeated several times, with each fold being witnessed and sign on the back side of the document. Evidently this was a more difficult type of document to forge. The first opinion in the mishnah states that each type of document must be signed in its customary manner: a simple document on the front and a sewn document on the back.
Rabbi Hanina ben Gamaliel states that a sewn document with signatures on the front is nevertheless valid, and is in essence treated as if it was a simple document.
Rabban Shimon ben Gamaliel states that this law is dependent on the customs of the place. If the custom is to allow sewn documents to be signed on the inside as well as the outside then they are valid; if not they are invalid."
],
[
"Introduction\nMishnah two mostly discusses discrepancies within a debt document.",
"This mishnah deals with documents which were not done properly or had the amount of the debt partially erased.",
"A simple document requires two witnesses; a sewn document requires three. If a simple document has only one witness, or a sewn document has only two, they are both invalid. A simple document must have two witnesses and a “sewn document” must have three. If they have fewer than the required amount the document is invalid.",
"If it was written in a debt document: “100 zuz which are 20 sela (=80”, he (the can claim only 20 sela; if [it was written] “100 zuz which are 30 sela (=120” he (the can claim only 100 zuz. If in a debt document (an IOU) a number was incorrectly converted into another coin (i.e. dollars into cents), the debtor owes the creditor only the lower amount.",
"[If there was written in a debt document] “Silver zuzim which are …”, and the rest was erased, [the creditor can claim] at least two zuzim. [If there was written in a debt document] “Silver selas which are …”, and the rest was erased, [the creditor can claim] at least two selas. [If there was written in a debt document] “Darics which are …”, and the rest was erased, [the creditor can claim] at least two darics. If a document said that the debtor owed a plural of a certain coin, but the number of the coins owed was erased the creditor can collect only two of the coin. Since the coin was written in plural (i.e. dollars), we know that the number was more than one. The minimum that it could have been is two, and this is what the creditor will be able to collect from the debtor.",
"If at the top was written a “maneh (100” and at the bottom “200 zuz”, or “200 zuz” at the top and “maneh” at the bottom, everything goes according to the bottom amount. If so, why is the figure written at the top of the document? So that, if a letter of the lower figure was erased, they can learn from the upper figure. If the number at the bottom of a debt document disagrees with the number at the top, the creditor can collect according to the bottom figure, whether it is higher or lower than the bottom figure. The assumption is that the writer of the document, the debtor (or a scribe on his behalf) changed his mind after writing the first amount, and his true intention was the second amount. The mishnah then asks, why do we customarily write the amount on the top and not just on the bottom? The answer is that the top amount will help if the bottom amount is erased. If, however both amounts are still clearly written, we follow the bottom one.",
"Questions for Further Thought:
• Sections two and three: What is the principle that explains why in this case the debtor owes the lower amount (section two) or only two of the coin (section three)?"
],
[
"Introduction\nMishnah three discusses the consent needed from the involved parties in order to write a document.",
"They may write out a bill of divorce for a man even if his wife is not with him, or a receipt (stating that the husband has paid the ketubah for the wife even if her husband is not with her, provided that he (the knows them. And the husband pays the (scribe’ fee. A scribe may write a get (a divorce document) for a husband or a receipt for the woman saying that she had received her ketubah payment even if the spouse is not there. The reason that he can write the get without the woman’s presence is that according to Jewish law a woman can be divorced against her will. Since she need not agree to the writing of the document, she need not be present when it is written. The reason that the scribe can write the receipt without the husband’s presence is that it is to the husband’s advantage that a receipt be written. Without the receipt the woman might claim that her husband had not paid her the ketubah money. In other words, in both of these cases there is no potential that the husband will fraud the wife by writing a get nor the woman fraud the husband by writing a document. The only requirement is that the scribe know the people for whom he is writing the document. Since the husband is the one divorcing his wife and in the case of the receipt the husband is the one benefiting, he pays the scribe’s fee.",
"They may write out a document for the debtor even though the creditor is not with him, but they may not write out a document for the creditor unless the debtor is with him. And the debtor pays the (scribe’ fee. A scribe may write a loan document while not in the presence of the creditor but it must be done in the presence of the debtor. Since the debtor is the one who through the document becomes liable to pay back the creditor, the scribe must know that the debtor agreed to the writing of the document. The creation of the document is beneficial to the creditor, for through it he will receive the money in return. Therefore it need not be written in his presence. The debtor pays the scribe’s fee.",
"They may write out a deed of sale for the seller although the buyer is not with him, but they may not write it out for the buyer unless the seller is with him. And the buyer pays the (scribe’ fee. A scribe may write a sale document while not in the presence of the buyer but it must be done in the presence of the seller. Since the document will cause the seller to lose his property, the scribe must know that it is being written with his consent. The buyer, who gains from the sale, need not be present. The buyer pays the scribe’s fee.",
"Questions for Further Thought:
• Sections two and three: Why do you think the debtor and not the creditor pays the scribe’s fee? Remember that according to Jewish law it is forbidden to lend money to other Jews with interest. Why does the buyer pay the fee?Can you extract general principles from these two mishnayoth for when the document must be written in a person’s presence?"
],
[
"Introduction\nMishnah four continues to discuss the consent needed from the involved parties in order to write a document.",
"They may not write documents of betrothal or marriage except with the consent of both parties. And the bridegroom pays the (scribe’ fee. Since it is necessary for both the bridegroom and the groom to consent to the marriage of the other, the scribe may not write the document without both of their consent. Since the bridegroom is gaining a wife, he writes the document.",
"They may not write documents of tenancy and sharecropping except with the consent of both parties. And the tenant pays the (scribe’ fee. Tenancy is a lease in which the tenant agrees to give the owner of the land a fixed portion of the crop. Sharecropping is a lease in which the sharecropper agrees to give a fixed amount regardless of what the crop yields. In both of the these types of agreements between landowners and those who wish to work the land the document must be written in front of them both. Since the landowner is giving over a piece of his land and the tenant is promising to give the landowner something in return the scribe must ensure that the deal is agreed to by both parties. The scribe’s fee is split.",
"They may not write documents of arbitration or any document drawn up before a court except with the consent of both parties. And both parties pay the (scribe’ fee. Rabban Shimon ben Gamaliel says: “Two documents are written for the two parties, one copy for each.” Arbitration documents are those that state who are the judges from whom the litigants agreed to accept binding judgement. In the time of the Mishnah litigants jointly chose judges (see Sanhedrin 3:1), who were not necessarily fixed employees of the state. The other types of court documents referred to in this mishnah would include such documents as those which allowed the creditor to collect the collateral from the debtor in case of default on a loan or a document that states that a creditor collected such collateral (possibly from a third party). These documents must be written in the presence of both parties, and both parties share the scribe’s fee.",
"Questions for Further Thought:
• Can you extract general principles from this mishnah and the previous one for when the document must be written in a person’s presence?"
],
[
"Introduction\nMishnah five deals with laws concerning paying back debts.",
"If a man had paid part of his debt and gave the debt document to a third party, and the debtor said to him, “If I have not paid you back by such and such a day, give him (the back the debt document” and the time came and he had not paid, Rabbi Yose says: “He should give it to him.” Rabbi Judah says: “He should not give it to him.” When a person borrows from another person the creditor keeps possession of the debt document, in order to use it later to collect his debt. If the debtor were to pay back half of the loan, the creditor would not be able to give back the debt document, lest he be unable to collect the second half of the loan. On the other hand, the debtor would not want the creditor to keep the document, lest he use it to collect the entire loan, even though half was already paid back. One solution to such a problem was to give the debt document to a third person and for the debtor to promise to pay back the remainder within a certain time or else the third party was to return it to the creditor. According to Rabbi Yose in such a case if the time elapsed the third party should give the debt document to the creditor. According to Rabbi Judah he should not. Since the debtor did not really intend to allow the creditor to collect more than his debt by using the debt document after it had been partially paid, the third party is not allowed to return it to the creditor."
],
[
"Introduction\nMishnah six discusses a loan document that has been erased and one that has been partially repaid.",
"If a man’s debt document was erased, he must have witnesses testify with regards to the loan, and come before the court to make this attestation: “So and so, the son of so and so, his debt document was erased on such and such a day, and so and so and so and so are his witnesses.” If a creditor’s debt document was damaged, for instance through water, he needs to bring to the court witnesses to testify to the original loan. The court will then draw up a new document which he will subsequently be able to use to recover his loan.",
"If a man had paid part of his debt, Rabbi Judah says: “He should exchange the debt document for a new one.” Rabbi Yose says: “He should write a receipt.” Rabbi Judah said: “It turns out that this one (the will have to guard his receipt from mice.” Rabbi Yose said to him: “That’s good for him, as long as the rights of the other (the have not been damaged. We mentioned in the previous mishnah the problem created when a man pays back part of his loan. In this mishnah two other solutions are offered. Rabbi Judah says that a new loan document should be written. Rabbi Yose says that the creditor should write a receipt. Rabbi Judah tells Rabbi Yose that the problem with writing a receipt is that the debtor will have to guard it from being eaten by mice. If the debtor loses the receipt the creditor will be able to fully collect the debt. (Normally when a person pays back a debt the document would be torn up so that it would not be used again.) Rabbi Yose says that his solution (writing a receipt) is better because writing a new document will damage the rights of the creditor. The rights referred to here are the lien that exists on the creditors property. The lien is effective from the day that is written on the document. In other words any property owned by the debtor on the day mentioned in the debt document has on it a lien and therefore the creditor could collect that property should the debtor default. If between the day on which the original document was written and the day of the rewriting, the debtor has lost property, a later date on the document will damage the creditor’s ability to collect on his loan.",
"Questions for Further Thought:
• Is there any consistency in the opinions of Rabbi Yose and Rabbi Judah as they appear in this mishnah and in the previous one?
• Why is Rabbi Judah concerned that a debtor will lose his receipt but evidently not concerned that a creditor will lose the debt document?"
],
[
"Introduction\nMishnah seven deals with various subjects such as brothers who share an inheritance and the recognition of documents in a case where two people in a city have the same. The final section of the mishnah deals with loan guarantors.",
"If there were two brothers, one poor and one rich, and their father left them a bath house or an olive press, if the father had made them for hire, the profit is split equally. But if he made them for his own use alone, the rich brother may say to the poor brother, “Buy for yourself slaves and they can wash in the bath house” or “Buy for yourself olives and prepare them in the olive press.” A bath house and an olive press could either be owned for personal usage or as a rental. If two sons, one rich and one poor, inherited either a bath house or an olive press, the poor son will want to rent them out to others and collect the money and the rich son, who doesn’t need the money and may be able to make personal use of a bath house and an olive press, may want to use them for personal usage. According to the mishnah, the determining factor is what the father had done with them. If he had used them for rent, then the poor son can force the rich son to continue to use them in such a manner. If they had been used for personal needs the rich son can say to the poor son, use them as much as you like, buy slaves to bathe in the bath house or olives to press, but you may not rent them out to others.",
"If there were two in the same town, and one’s name was Joseph the son of Shimon and other’s name was Joseph the son of Shimon, neither can bring forth a debt document on the other, and another person cannot bring forth a debt document against them. And if some person finds amongst his documents a document that states, “The [debt] document of Joseph ben Shimon is paid”, both of their [debt] documents are paid. What should they do? They should write their names to the third generation. And if the names are the same through the third generation, they should give themselves a sign. And if their signs are the same, they should write “Cohen”. If two people in a city have the same name, it will problematic for them to collect debts from each other and for others to collect debts against them. Neither of them will be able to claim against the other for the other could claim that he is actually the creditor and not the debtor. Nor will others be able to claim from them for each of them may claim that the other Joseph ben Shimon is the debtor. If a third party who had loaned them both money should find amongst his documents a document that says that Joseph ben Shimon paid back his debt, both of their debts are cancelled. The way to remedy this problem is to write a third generation with their names, Joseph the son of Shimon the son of Jacob, or a sign that would designate the person’s profession, i.e. a saw for a carpenter, or a fish for a fisherman, or to write Cohen, Levi, depending on the person’s status.",
"If a man said to his son, “One of my debt documents is paid and I do not know which one”, then all are deemed to be paid. If two documents were found [amongst his documents] written to the same debtor, then the large one is paid and the small one is not paid. If a dying person told his son that one of the debt documents that he held (containing what other people owe him), was paid off but he didn’t know which one, the son will not be able to collect any of the debts. If amongst his documents were two different loans to the same person, we can be sure that only one of them is paid off. In such a case the son may collect on the smaller loan.",
"If a man lent money to his fellow on a guarantor’s security, he may not exact payment from the guarantor. But if he had said, “On the condition that I may exact payment from whom I wish”, then he may exact payment from the guarantor. Rabban Shimon ben Gamaliel says: “If the borrower had property, in neither case can he exact payment from the guarantor.” Moreover, Rabban Shimon ben Gamaliel used to say: “If a man was a guarantor for a woman’s ketubah and her husband divorced her, the husband must vow to derive no further benefit from her, lest he make a conspiracy against the property of the guarantor and take his wife back again.” If a debtor used a guarantor to secure his loan the creditor may not exact payment from the guarantor, unless, of course, the debtor did not have property with which to pay back the loan. If, however, the creditor had stated at the outset that he was going to exact payment from whomever he wishes, then he may exact payment from the guarantor even if the debtor had property. Rabban Shimon ben Gamaliel holds that in any case, if the debtor had property, the creditor cannot collect from the guarantor. Rabban Shimon ben Gamaliel holds a similar opinion with regards to a woman’s ketubah. If a woman had a guarantor on her ketubah, in other words someone guaranteed to pay her ketubah should her husband not be able to, and then the husband divorced her and the woman collected from the guarantor, the husband must swear to never receive benefit from her again. The fear is that the husband will make a deal with his wife, that he will divorce, she will collect her ketubah from the guarantor and then be remarried to him, and give him the money that she collected from the guarantor.",
"Questions for Further Thought:
• Section three: Why can he only collect on the smaller loan? What is the halachic principle governing this law and indeed most of the laws contained in this mishnah?
• Section four: What is similar about Rabban Shimon ben Gamaliel’s two statements in this section?"
],
[
"Introduction\nMishnah eight, the final mishnah of Bava Batra, deals with a creditor’s ability to recover his debt if the debtor is not able to pay back the loan himself.",
"If a man lent his fellow money by using a document, he may recover the debt from mortgaged property. But if he had lent only before witnesses (and not through a, he may recover the debt only from unmortgaged property. If a man used a document to lend money he may recover the debt even from mortgaged property. This means that if after the time of the loan the debtor sold some of his property and then was not able to repay the loan the creditor can collect from that sold property. If, however, the loan was only done orally, with witnesses to testify, then he may only recover from unmortgaged property, namely property still in the hands of the debtor.",
"If the [creditor] brought forth [a loan document] upon which appeared his (the debtor’ signature as evidence that he was indebted to him, the creditor may recover the debt only from unmortgaged property. If the creditor had a debt document written or signed by the debtor himself, but not signed by witnesses, he may collect from unmortgaged property but not from mortgaged property.",
"If a man signed as a guarantor after the signatures of witnesses, the creditor may recover the debt only from [the guarantor’s] unmortgaged property. Such a case came before Rabbi Yishmael and he said, “He may recover only from unmortgaged property”. Ben Nanos said to him: “He may recover the debt neither from mortgaged nor unmortgaged property.” He said to him: “Why?” He answered, “If a man seized a debtor by the throat in the street and his fellow found him and said ‘Leave him alone (and I will pay’, he is not liable, since not through trust in him did the creditor lend the debtor money.” Rather which type of guarantor is liable? [If a man said], “Lend him money and I will pay thee”, he is liable, for he lent him the money through his trust in the guarantor. According to Rabbi Yishmael if the witnesses signed on a document and the guarantor signed afterwards the creditor may collect only from the guarantor’s unmortgaged property but not from his mortgaged property. Ben Nanos disagrees with Rabbi Yishmael and states that in such a case the creditor cannot collect from any of the guarantor’s property. The reason is that the creditor loaned the money not based on his trust of the guarantor. Ben Nanos makes an analogy to a creditor who attacks a debtor and a third party promises to pay back the debt. In such a case the creditor does not actually believe that the guarantor will pay back the debt and therefore the guarantor is not obligated to repay the loan. According to Ben Nanos only if the guarantor guarantees the loan before it is executed and the creditor makes the loan from the outset knowing who the guarantor is can the creditor collect from the guarantor.",
"And Rabbi Yishmael said, “He who wants to be wise let him occupy himself with cases dealing with monetary matters, for there is no greater branch of Torah than this; for they are like a welling fountain; and he who wishes to occupy himself with laws concerning monetary matters, let him serve [as a pupil] of Shimon ben Nanos. Rabbi Yishmael finishes tractate Bava Batra, which is indeed the last part of a much longer tractate called Nezikin that has been broken into three parts, Bava Kamma, Bava Metzia and Bava Batra, with a message as to the importance of these laws. A person who wishes to sharpen his intelligence, should study monetary laws, for the logic and methods of reasoning that stand behind these laws is the greatest in all of Torah study. And in a final note of concession to Ben Nanos, with whom Rabbi Yishmael has just disagreed, Rabbi Yishmael says that the greatest teacher of the laws concerning money is Shimon ben Nanos himself. Rabbi Yishmael teaches us two important lessons: 1) Learning Torah does not only teach us how to live our lives, but through its study we can become more intelligent people. 2) He teaches us the humility to have the utmost respect even for those with whom we might disagree.",
"Questions for Further Thought:
• Section one: Why do you think that a creditor has greater to power to collect when the loan is executed through a document?Congratulations! We have finished Bava Batra.It is a tradition at this point to thank God for helping us to finish learning the tractate and to commit ourselves to going back and relearning it, so that we may not forget it and so that its lessons will stay with us for all of our lives.For those of you who have learned with us the entire tractate, a hearty Yasher Koach (congratulations). You have accomplished a great deal and you should be proud of yourselves. Indeed we have now finished together three tractates of Mishnah. Of course, we have much more to learn. We will begin Sanhedrin tomorrow!"
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