The Judges of the Exile,1 however, say that one can obtain hazakah. The halachah said Rab, is that of the Judges of the Exile.2 Thereupon R. Kahana and R. Assi said to him: Does our Master retract his ruling? - He replied: You may suppose I refer to such a case3 as that mentioned by R. Joseph.4
A WIFE HAS NO HAZAKAH IN THE PROPERTY OF HER HUSBAND. Surely this is self-evident; since the husband has to maintain her, [we suppose that when she occupies the field] she is merely deriving her maintenance from it? - The rule had to be stated [to cover the case] where he assigned her another field for her maintenance.5
[Since the Mishnah says only that the wife has no hazakah], we infer that if she brings proof6 [that the field has been sold to her] the sale is valid. But cannot the husband plead against this that he merely desired to see if she had any money?7 May we then not learn from this [Mishnah] that if a man sells a field to his wife, she becomes the legal owner and we do not say that he merely desired to see if she had any money? - No; we infer [rather] thus: but if she brings a proof it is effective in the case of a deed of gift [though not of a deed of sale].8
R. Nahman said to R. Huna: A pity your honour was not with us last night at the boundary,9 when we drew up an exceptionally fine rule.10 Said the other: What was this exceptionally fine rule which you drew up? He replied: If a man sells a field to his wife, she becomes the legal owner, and we do not say that he merely desired to see if she had money. Said R. Huna: This is obvious. Take away the money, and she still becomes legal owner by means of the deed.11 For have we not learnt: [Ownership in] landed property is acquired by means of money payment, deed, or hazakah?12 But, said R. Nahman, has not the following rider been attached to this [Mishnah]: Samuel said that this13 was meant to apply only to a deed of gift, but if the deed is one of sale, legal ownership is not acquired until the money payment has been made? And, [rejoined R. Huna] did not R. Hamnuna refute this [by quoting the following]: 'How is property acquired by a deed? Suppose he [the seller] writes on a [piece of] parchment or on a potsherd,14 which in themselves may be worth nothing, My field is hereby sold to you, my field hereby becomes your property, it is effectively sold or given!15 - But did not R. Hamnuna counter his own objection16 by adding: This holds good only where a man sells his field because it is practically worthless?17 R. Ashi said: He [the seller referred to above]18 really meant to transfer his field to the other as a gift, and the reason why he made the transfer in the form of a sale was in order to make the recipient's title more secure.19
An objection20 was raised [from the following]: If a man borrows money from his slave and then emancipates him, or from his wife and then divorces her, they have no claim against him [for the money so lent].21 What is the reason for this? Is it not because we say that his object [in borrowing] was only to see if they had any money? These cases are different,22 because [we presume that] a man would not readily place himself in the position of 'a borrower who is a servant to the lender.'23 R. Huna b. Abin sent [the following message:24 'If a man sells a field to his wife, she becomes the legal owner,
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(1) Samuel and Karna. Thus Rashb.; v. however, San. 17b and note a.l., and cf. infra p. 279 no. 6.
(2) [V.L. The view of the Judges of the Exile appears reasonable.]
(3) [Another rendering: 'I merely said that it appears reasonable (cf. n. 1) in such a case etc.']
(4) Rab did not actually mention R. Joseph, who was several generations after him, but described a similar case to that given by R. Joseph.
(5) In which case, but for the rule of the Mishnah, I might suppose that three years' occupation would give her hazakah.
(6) E.g., a deed of sale or witnesses.
(7) He suspected that she had money hidden away and wanted to entice her to produce it, but he had no genuine intention of selling her the field.
(8) I.e., if she produces a deed of gift, we say that he really has given her the field, for there is no question here of enticing her to produce money.
(9) A Beth Hamidrash placed two thousand cubits (the limit of a Sabbath walk) from the town, so as to be accessible to the country people (Rashb.).
(10) Lit., 'we said excellent things'.
(11) I.e., if he gives her a deed of sale (without taking money from her), it is obvious that he does not desire to see if she has any money, since she becomes legal owner even without handing over any money (although of course she becomes indebted to him).
(12) Kid. 26a; infra 86a. The word 'hazakah' here means occupation by means of some action which proclaims ownership, e.g. digging or fencing.
(13) That ownership is acquired by a transfer of the deed.
(14) [Blau, L. Ehescheidung, 63. renders 'on papyrus or on ostrakon'].
(15) Kid. 26a. This would show that the deed of sale itself confers ownership, even before the money payment is made.
(16) Lit., 'He raised the objection and he answered it.'
(17) And so the money is of minor consequence, but this is not the case with an ordinary field.
(18) In the Mishnah, 'Property . . . is acquired by money, deed, or hazakah.'
(19) R. Ashi gives an alternative answer to that given by R. Nahman to the objection raised from this Baraitha. The deed referred to, he says, may be in form one of sale, but even so the land is really given, and the donor by drawing up a deed of sale expresses his readiness to defend the title of the recipient if it should be challenged. In the case of a sale, however, the deed alone does not confer ownership; hence R. Nahman's rule that a man may sell a field to his wife was still necessary.
(20) Against the ruling that if a man sells a field to his wife she becomes the legal owner.
(21) Even if he gave them a bond on his property.
(22) I.e., in these cases it is legitimate to assume that he only wanted to see if they had any money, which he, as master or husband, was at liberty to appropriate.
(23) v. Prov. XXII, 7. Hence if we can find any other explanation of his action we adopt it.
(24) From Palestine to Babylonia.but he still remains entitled to the produce. R. Abba, R. Abbahu, and all the chief authorities of that generation,1 however, said that [in selling] his real intention was to make her a gift of it,2 and he only made out a deed of sale to her in order to make her title more secure. An objection was raised [against this on the ground of the following]:3 'If a man borrows money from his slave and then emancipates him, or from his wife and then divorces her, they have no claim against him. What is the reason? Is it not because we say that he merely wished to see if they had any money?' - These cases are different, because we presume that a man would not readily place himself in the position of 'a borrower who is a servant to the lender.'
Rab said: If a man sells a field to his wife, She becomes the legal owner, but he is still entitled to the produce. If he makes her a gift of a field, she becomes the legal owner and he is no longer entitled to the produce.4 R. Eleazar, however, said that in either case the wife becomes the legal owner and the husband is not entitled to the produce. In a case which actually occurred, R. Hisda followed the ruling of R. Eleazar. Rabban 'Ukba and Rabban Nehemiah,5 the sons of the daughters of Rab, said to R. Hisda: Do you mean then, Sir, to abandon the greater authorities and follow the lesser?6 He replied: I also am following a great authority, for when Rabin came7 he said in the name of R. Johanan: In either case, the wife becomes the legal owner, and the husband is not entitled to the produce.
Raba said: The law is that if a man sells a field to his wife she does not become the legal owner and the husband is entitled to the produce, but if he gives it to her she becomes the legal owner and the husband is not entitled to the produce. [Do not the] two [halves of Raba's first statement contradict each other]?8 - There is no contradiction. The one [half] refers to the case where the wife had money hidden away,9 the other to the case where she had no money hidden away,10 since Rab Judah has laid down: [If the wife buys with] money hidden away, she does not acquire, if with money not hidden away, she does acquire.
Our Rabbis taught: Pledges should not be taken either from women or from slaves or from children.11 If one has taken a pledge from a woman, he should return it to her;12 if she dies, to her husband. If one has taken a pledge from a slave, he should return it to the slave, or, if he dies, to his master.
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(1) [The generation preceding that of R. Huna b. Abin.]
(2) And therefore he is not entitled to the produce.
(3) The question and answer just recorded are here repeated.
(4) Because it is assumed that a gift is given without reservation.
(5) (V. L. Mar 'Ukba and Rab Nehemiah. Rabban was a title borne by exilarchs, v. Hul. 92a.)
(6) R. Eleazar was a pupil of R. Johanan, who himself deferred to Rab.
(7) From Palestine to Babylonia.
(8) First he says, 'She does not acquire ownership,' i.e., either of the soil or of the produce, and then he says, 'and the husband is entitled to the produce,' which implies that the wife acquires ownership of the soil.
(9) In this case we say that he merely wished to find out if the wife had any money, and she does not acquire ownership.
(10) And this motive cannot be ascribed to the husband.
(11) Because there is a probability that they have stolen the articles pledged or deposited.
(12) Because we do not assume that she has stolen it.If one has taken a deposit from a child, he should invest it for him,1 or, if he dies, restore it to his heirs. If any of them at the time of his death says, The article belongs to so-and-so, he should act according to their intimation. Otherwise he should act according to his discretion.2 When the wife of Rabbah b. Bar Hana was on her deathbed, she said: Those [precious] stones belong to Martha3 and his daughter's family. He consulted Rab about it, and the latter said to him: If you think she was telling the truth,act according to her instruction, and if not, use your own discretion.4 According to another version, Rab said to him: If you think her a wealthy enough person,5 act according to her instruction, and if not, use your own discretion.
'If he has taken from a child, he should invest it for him.' How invest it? - R. Hisda said: He should buy with it a scroll of the Law;6 Rabbah son of R. Huna said: He should buy with it a date tree, of which the child can eat the fruit.
A FATHER HAS NO HAZAKAH IN THE PROPERTY OF HIS SON NOR A SON IN THE PROPERTY OF HIS FATHER. R. Joseph said: This applies even if they have parted.7 Raba,8 however, said that if they have parted the rule no longer applies. R. Jeremiah of Difti said: In a case which occurred, R. Papi decided according to the ruling of Raba. R. Nahman b. Isaac said: I have been told by R. Hiyya from Hormiz Ardeshir,9 who was told by R. Aha b. Jacob in the name of R. Nahman b. Jacob, that if they [the father and son] have parted, the rule [of the Mishnah does] not apply.10 The law is that where they have parted they have no hazakah against one another. It has also been taught to the same effect: A son who has left his father's roof and a wife who has been divorced are on the same footing as strangers [in regard to the father or husband].
It has been stated: [If a number of brothers live together and] one of them has the management of the house,11 and if there are deeds12 and bonds13 current in his name and he asserts, 'They are mine,14 and I obtained them from the legacy of my maternal grandfather',15 Rab says that the onus probandi lies upon him, and Samuel says that the onus probandi lies upon the brothers.16 Said Samuel: Abba17 must at least admit that if he dies [and leaves children], the onus probandi lies on the brothers.18 R. Papa strongly questioned this. Do we ever, he said, advance a plea on behalf of orphans which their father could not have advanced [on his own behalf]?19 And further, did not Raba order some orphans to return a pair of shears for clipping wool20 and a book of Aggadah which were claimed from them, though the claimants adduced no proof [that they had lent them],21 these being articles which are commonly lent or hired,
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(1) Lit., 'make it a keepsake'. The expression is explained infra.
(2) Lit., 'he should make an explanation to their explanation.' Rashb. explains this to mean that if he thinks they say this merely to hide the fact that they have stolen the article, he should restore it to the husband or master.
(3) The brother of R. Hiyya.
(4) I.e., keep it for yourself.
(5) To have acquired these things.
(6) So that he may learn from it, and thus obtain a kind of interest on the investment while the principal is secure.
(7) Because we say that they are still not particular with one another, and therefore do not trouble to protest.
(8) [V.L. Rabbah.]
(9) Ardeshir was a town not far from Ctesiphon. 'Hormiz Ardeshir' may have been a village in the neighbourhood.
(10) I.e., they have hazakah against one another.
(11) I.e., the brothers leave all the affairs of the joint property in his hands after the father's death.
(12) Of sale, to the effect that he has bought property.
(13) To the effect that he has lent money.
(14) And the brothers have no share in them.
(15) I.e., he obtained the money for buying the property or for lending not from the estate of his father or his father's father, in which case the other brothers would be entitled to share with him, but from the estate of the father of his mother, he and his brothers having been born from different mothers.
(16) Rab lays stress upon the fact that he usually disposes of the joint property in his own name, Samuel on the fact that the documents are made out in his name.
(17) Rab's proper name was Abba Arika.
(18) Because his children cannot be expected to know so easily where to find proof.
(19) Viz., in this case, that his name on the documents gives him a presumptive right to them.
(20) Lit., 'Scissors of a woollen cloak'. [Var. lec. 'A pair of trousers'. V. Krauss, op. cit., I, 612.]
(21) The claimants asserted that the articles were lent, the orphans that they were bought, and Rab took the word of the former, as he would have done had the claim been made against the father. Hence a plea is not valid on behalf of an heir which is not valid on behalf of the testator.[and Raba acting] according to the message sent by R. Huna b. Abin, 'If things that are usually lent or hired [are found in a man's possession] and he pleads that he has bought them, his word is not accepted?' - This is really a difficulty.1
R. Hisda said: The rule just laid down2 applies only if the brothers share a common table,3 but if they eat separately, the one [against whom the claim is brought] can say that he saved up [money] from his food allowance. What sort of proof is required [of the brother]? - Rabbah said: The testimony of witnesses; R. Shesheth said: The confirmation of the document.4 Raba said to R. Nahman: Here we have the opinion of Rab and of Samuel, and again that of Rabbah and R. Shesheth: with whom do you agree? He replied: All I know is a Baraitha. For it has been taught: [If brothers live together and] one of them has the management of the house, and if deeds and bonds are current in his name and he asserts: I obtained them from the legacy of my maternal grandfather, the onus probandi lies upon him.5 Similarly, if a woman has the management of a house, and deeds and bonds are current in her name, and she asserts: They are mine, as I obtained them from the legacy of my paternal or maternal grandfather, the onus probandi is upon her. Why 'similarly'?6 - You might think that as it is a matter of pride for a woman for [people] to say that she has the charge of orphans she would not rob them.7 Hence we are told [that we must not assume this].
THIS RULE OF THREE YEARS APPLIES ONLY TO OCCUPIERS, BUT ONE WHO IS PRESENTED WITH A PIECE OF LAND OR BROTHERS WHO DIVIDE AN INHERITANCE OR ONE WHO SEIZES THE PROPERTY OF A PROSELYTE etc. Are then the others mentioned8 not occupiers? - There is a lacuna [in the Mishnah], and it should read as follows: This rule [of three years] applies only to occupation which requires to be supported by a plea, as for Instance if the seller says, I did not sell it,in which case the other has to plead, I did buy it.9 But where the occupation needs no plea to support it, as for instance in the case of the recipient of a gift or brothers dividing [an inheritance] or one who seizes the property of a proselyte where nothing more is required than to establish ownership10 - IF HE DOES ANYTHING AT ALL IN THE WAY OF SETTING UP A DOOR OR MAKING A FENCE OR AN OPENING, THIS CONSTITUTES A TITLE OF OWNERSHIP.
R. Hoshaia learned in the [Tractate] Kiddushin edited in the school of Levi:11 If he [the buyer] does anything at all in the way of setting up a door or making a fence or an opening in his [the seller's] presence, this constitutes a title of ownership. Are we to suppose that this is only [the case if the act is done] in the seller's presence, and not otherwise? - Raba replied: The meaning is this. [If the act is done] in his presence, he has no need to say [to the buyer], Go, occupy and acquire ownership;12
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(1) And Samuel has no answer to it.
(2) By Rab, who said that the onus probandi is on the brother.
(3) Lit., 'are not separated in their dough'.
(4) The so-called 'honpak' (lit., 'it was produced'): the endorsement of the Beth din that they had examined the signatures and found them genuine. This would create a presumption in favour of the brother, but would not be so convincing as the testimony of witnesses.
(5) As laid down by Rab. V. supra 52a. As to the nature of the proof required, R. Nahman offers no opinion.
(6) This term should by rights introduce a statement which adds something material to the preceding statement, which does not seem to be the case here.
(7) And therefore the onus probandi is on the other party.
(8) The recipient of a gift and brothers who divide an inheritance and one who seizes the property of a proselyte.
(9) And without this plea his three years' occupation is of no avail.
(10) I.e., there is no need to hand over money.
(11) Levi also drew up a Tosefta like R. Hiyya and R. Oshiah (Rashb.). [V. however, Halevy, Doroth II, 595.]
(12) I.e., the transaction is complete without this.but [if the act is] not [done] in his presence, he must say, Go, occupy and acquire ownership. Rab inquired: What is the rule in the case of a gift? Said Samuel: What is Abba's1 difficulty? Seeing that in the case of a sale where the purchaser gives money, if the seller says to him, 'Go, occupy and acquire ownership,' he does acquire ownership but otherwise not, how much more so in the case of a gift?2 - Rab, however, was of opinion that a gift is usually made in a liberal spirit.3
How much is meant by 'anything at all''? - [The answer is given] in the dictum of Samuel: If a man raises a fence already existing to ten handbreadths4 or widens an opening so that it allows of entry and exit, this constitutes effective occupation.5 How are we to picture this fence? If we say that before [the man touched it] people could not climb it and now too they cannot climb it, what has he done?6 If again we say that before people could climb it but now they cannot, he has done a great deal!7 - We must therefore say that before it could be climbed easily but now it can only be climbed with difficulty. How are we to picture the opening? If we say that before people could get through it and now too they can get through it, what has he done?6 If again we say that before people could not get through it but now they can, he has done a great deal!7 We must therefore say that before people got through with difficulty, but now they get through easily.
R. Assi said in the name of R. Johanan: If [in the estate of a deceased proselyte] a man by placing a pebble or removing a pebble confers some advantage, this action gives him a title to the land. How are we to understand this placing and removing? If we say that by placing the pebble [there] he stops water from overflowing the field8 or by removing the pebble he allows water to run off from the field,9 he is merely in the position of 'a man who chases a lion from his neighbour's field'!10 - We must say therefore that in placing the pebble he conserves the water11 and in removing the pebble he makes a passage for the water.12
R. Assi further said in the name of R. Johanan: [If the estate of a deceased proselyte consists of] two [adjacent] fields with a boundary between them, then if a man takes possession13 of one of them with the idea of becoming owner, he acquires ownership of that one;
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(1) Rab. v. supra p. 214, n. 9.
(2) I.e., a fortiori, if the recipient of the gift does not take possession in the donor's presence, the latter must use this formula to make the gift valid.
(3) V. infra 71a. And therefore he was doubtful whether the formula was necessary even in this case.
(4) This was reckoned the minimum height which would act as a barrier.
(5) Because something has been done to alter the character of the property and improve it.
(6) To improve the property.
(7) And we should not call it 'anything at all'.
(8) And so damaging it.
(9) Which was waterlogged.
(10) I.e., he merely performs a neighbourly action which is incumbent on any man.
(11) Where it was required.
(12) Allowing it to enter and water the field.
(13) By means of some appropriate action.if with the idea of becoming owner of both, he becomes owner of that one but not of the other;1 if with the idea of becoming owner of the other, he does not acquire ownership even of that one.2 R. Zera put the following question: Suppose he takes possession of one of them with the idea of becoming owner of that one and of the boundary and of the other one, how do we decide? Do we say that the boundary goes with this field and with that3 and so he acquires the whole, or do we say that the boundary and the fields are separate?4 This question must stand over. R. Eleazar put the question: Suppose he takes possession of the boundary with the idea of becoming owner of both fields, how do we decide? Do we say that the boundary is as it were the bridle of the land5 and so he acquires ownership, or are boundary and field separate? - This question [also] must stand over.
R. Nahman said in the name of Rabbah b. Abbuha: If there are [in a house] two rooms, one of which can only be reached through the other,6 then if a man takes possession of the outer room with the idea of becoming its owner, he acquires ownership of it; if with the idea of becoming owner of both rooms, he acquires ownership of the outer room but not of the inner one; if with the idea of becoming owner of the inner room, he does not acquire ownership even of the outer one. If he takes possession of the inner one with the idea of becoming its owner, he acquires ownership of that one; if with the idea of becoming owner of both, he does acquire ownership of both;7 if with the idea of becoming owner of the outer one [only], he does not acquire ownership even of the inner one.8
R. Nahman further said in the name of Rabbah b. Abbuha: If a man builds a large villa on the estate of a [deceased] proselyte and another man comes and fixes the doors, the latter becomes owner. Why is this? Because the first one merely deposited bricks there.9
R. Dimi b. Joseph said in the name of R. Eleazar: If a man finds a villa already erected on the estate of a [deceased] proselyte, and he adds one coat of whitewash or mural decoration, he acquires ownership.10 How much must he whitewash or decorate? R. Joseph says: A cubit. To which R. Hisda added: And it must be by the door.11
R. Amram said: The following dictum was enunciated to us by R. Shesheth, and he showed us the proof of it from a Baraitha:12 If a man spreads mattresses on the floor of a proselyte's estate [and sleeps on it], he thereby acquires ownership.13 How did he 'show proof of this from a Baraitha'? - [By citing the following passage] which has been taught: How is ownership [of a slave] acquired by 'taking possession'?14 If the slave fastens or undoes his master's shoe, or carries his clothes behind him to the bath, or undresses him, washes him, anoints him, scrapes him, dresses him, puts his shoes on15 or lifts him up, he becomes his owner.16 R. Simeon said: possession of this kind cannot be more effective than lifting up, seeing that it confers ownership in all cases. What does this mean? - We must understand the passage thus: If the slave lifts his master up, the latter acquires possession, but if his master lifts him up, he does not. R. Simeon said: possession cannot be more effective than lifting, seeing that it confers ownership in all cases.17
R. Jeremiah Bira'ah said in the name of Rab Judah: If a man
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(1) Because the boundary makes them two distinct fields.
(2) Because he cannot acquire ownership without the deliberate intention of doing so.
(3) Lit., 'the boundary of the land is one'. Rashb. reads: 'The boundary belongs to this field and to that.' The meaning is that if the boundary goes with the field, his intention to acquire the boundary secures him the boundary, and his acquisition of the boundary secures him the second field, with which it also goes.
(4) And he acquires only the first field, and not the boundary.
(5) If a man buys ten animals and takes hold of the bridle of one, he becomes the owner of all ten (Kid. 27b). If then we compare the boundary to a bridle, possession of it should confer ownership of both fields.
(6) Lit., 'one within the other'.
(7) Because the right of way from the inner room through the outer makes the latter subsidiary to the former.
(8) V. supra p. 218, n. 5.
(9) I.e., so long as the building is not completed, it is regarded merely as a heap of bricks.
(10) Because he has done something to improve the building.
(11) Where it will have its maximum effect; otherwise more than a cubit would be necessary.
(12) Lit., 'he enlightened our eyes from a Baraitha.'
(13) Because, although he does not improve the estate in any way, he derives some service from it.
(14) The rule is that ownership of a slave (as of land) is acquired by the handing over of money or of a deed, or by 'taking possession' (hazakah).
(15) This follows naturally on 'dresses him' though it has already been mentioned once.
(16) And R. Shesheth compares the ground to a slave in the matter of service.
(17) If a man buys an article and lifts it up, he immediately becomes owner, even if he is on ground belonging to the seller, whereas if he merely pulled it towards him (v. infra 76b), he would not in this case thereby become owner. Hence R. Simeon says that if the master lifts up the slave, this action also confers ownership.throws vegetable seeds into the crevices of a proselyte's land, this act does not confer a title of ownership. The reason is that at the time of his throwing [the seeds] no improvement is effected, and the subsequent improvement1 comes automatically.
Samuel said: If a man strips the branches from a date tree, if his purpose is [to improve] the tree.2 he acquires ownership [by so doing],3 but if his purpose is [to procure food] for his cattle, he does not acquire ownership. How can we tell [which is which]? If he takes the branches from all round, then [we know that] his purpose is [to improve] the tree, but if from one side only, then it is for the sake of his cattle.
Samuel further said: If a man clears a field [of sticks etc.], if his purpose is [to prepare] the soil [for ploughing], he thereby acquires ownership,3 but if it is to obtain firewood, he does not. How can we tell [which is which]? - If he picks up [all the sticks,] both big and small, then [we know] his purpose is to prepare the soil, but if he takes the big ones and leaves the little ones, then [we know that] he merely wants firewood.
Samuel further said: If a man levels a field,4 if his purpose is [to prepare] the soil [for ploughing] he thereby acquires ownership, but if he only wants to make threshing floors, he does not acquire ownership. How can we tell [which is which]? - If he has taken earth from the protuberances and thrown it into the depressions, then we know that his purpose is [to prepare] the soil,5 but if he merely smoothes out the protuberances or levels up the hollows, we know that he intended to make threshing floors.6
Samuel further said: If a man turns water into a field [from a stream], if he does so to irrigate the ground, he thereby acquires ownership, but if only to bring fish in, he does not acquire ownership. How can we know which is which? - If he makes two sluices, one to let the water in and one to let it out, we [know that] he is after the fish, but if one sluice7 then we know that his chief purpose is irrigate the field.
A certain woman had the usufruct of a date tree8 to the extent of lopping its branches for thirteen years [to give food to her cattle]. A man then came and hoed under it a little [and claimed ownership]. He applied to Levi [or as some say to Mar 'Ukba] who confirmed his title to the field. The woman came and complained bitterly to him, but he said: What can I do for you, seeing that you did not establish your title in the proper way?9
Rab said: If a man draws a figure [of an animal or bird]10 on the property of a [deceased] proselyte, he acquires ownership. [We ascribe this opinion to Rab] because Rab acquired the garden adjoining his Beth Hamidrash only by drawing a figure.11
It has been stated: If a field12 has a boundary marked all round R. Huna says in the name of Rab that as soon as a man digs up one spadeful he becomes the legal owner. Samuel, however, said that he becomes the owner only of as much as he turns up.
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(1) When the vegetables grow.
(2) By removing superfluous branches.
(3) I.e., this is an act constituting hazakah.
(4) Lit., removes obstacles'.
(5) Because he levels the whole field.
(6) Because he still leaves different parts of the field at different levels.
(7) So that the water collects.
(8) Belonging to the estate of a deceased proselyte.
(9) I.e., you lopped off one side only, instead of all round.
(10) Not necessarily of the size of a cubit, as would be required in the case of any other ornamental figure. V. supra 53b.
(11) I.e., the garden adjoining his Beth Hamidrash belonged to a proselyte who died, and Rab acquired ownership by drawing the figure of an animal or bird on the wall of his house.
(12) The reference is to a field belonging to a deceased proselyte. In a case of sale, the digging of one spadeful is effective.And if it is not bounded all round, how much does he acquire [by one stroke of the spade]?1 R. Papa said: The length of a furrow made by a pair of oxen, there and back.2
Rab Judah said in the name of Samuel: The property of a heathen3 is on the same footing as desert land; whoever first occupies it acquires ownership. The reason is that as soon as the heathen receives the money he ceases to be the owner, whereas the Jew does not become the owner till he obtains the deed of sale.4 Hence [in the interval] the land is like desert land and the first occupier becomes the owner.5 Said Abaye to R. Joseph: Did Samuel really say this? Has not Samuel laid down that the law of the Government is law,6 and the king has ordained that land is not to be acquired save by means of a deed? R. Joseph replied: I know nothing of that.7 [I only know that] a case arose in Dura di-ra'awatha8 in which a Jew bought land from a heathen and another Jew came and dug up a little of it, and when the case came before Rab Judah he assigned the land to the latter. Abaye replied: You speak of Dura di-ra'awatha? There the fields belonged to people who hid themselves and did not pay the tax to the king, and the king had ordered that whoever paid the tax9 should have the usufruct of the field.10
R. Huna bought a field from a heathen, and a Jew came and dug up some of it. He then presented himself before R. Nahman, who confirmed his title to it. R. Huna said to him: You decide thus [do you not], because Samuel said that the property of a heathen is on the same footing as desert land and the first occupier becomes owner?
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(1) This is the explanation of Tosaf. According to Rashb. the translation should be: 'If it is not bounded all round, how much must he dig up?' In either case we must supply the words 'according to Rab'.
(2) According to Tosaf. this was a fixed measure of length.
(3) The reference, as appears from what follows, is to property sold by a heathen to an Israelite who has paid the money but not yet received the deed of sale.
(4) The rule was that if a Jew bought land from a Jew, it remained in the ownership of the seller until the purchaser had received the title-deed, and either could retract until that time. But if a heathen sold land to a Jew, neither could retract so soon as the money had been paid, though in this case too the Jew did not become owner till he had received the title-deed.
(5) He must, however, reimburse the purchaser (v. Rashb. and R. Gersh.).
(6) [On the scope of this dictum, v. Abrahams, I., Pharisaism and the Gospels, I, 62ff.]
(7) As much as to say that he did not believe the king had ordained this.
(8) The name of a village. According to others, 'a village of shepherds'. [Obermeyer, op. cit., p. 142, identifies it with Dur on the Tigris, north of Bagdad.]
(9) In that case the Jew who came and did the digging.
(10) Hence we cannot infer from this that land bought from a heathen is not like desert land.Then follow also the other ruling of Samuel, that the one who digs in it obtains only as much as he digs up. He replied: In that respect I follow our own teaching1 as laid down by R. Huna in the name of Rab: As soon as he has dug up one spadeful he becomes legal owner of the whole.
R. Huna b. Abin sent2 to say that if a Jew buys a field from a heathen and another Jew comes and occupies it [before he receives the deed], we do not dispossess him, and R. Abin and R. Elai and all our teachers were in agreement on this matter.
Rabbah said: These three rules were told me by 'Ukba b. Nehemiah the Exilarch: [one,] that the law of the Government [in civil cases] is law; [a second,] that Persians acquire ownership by forty years' occupation;3 and [a third], that if property is bought from the rich landlords4 who buy up land and pay the tax on it, the sale is valid. This applies, however, only to [land] which is transferred to the landlords on account of the land tax; if [it is sold to them] on account of the poll tax, then a purchase from them is not valid, because the poll tax is an impost on the person.5 R. Huna the son of R. Joshua, however, said that even barley in the jar is liable to be seized for the poll tax.6 R. Ashi said: Huna b. Nathan told me that Amemar found it difficult [to accept this view] because if this was so it would leave no room for the double portion to which a firstborn is entitled in an inheritance,7 since all [bequeathed] property would in this way become 'prospective',8 and a firstborn does not receive a double portion in 'prospective' as in 'actual' assets. He [R. Ashi] remarked: The same reasoning would apply to the land tax also.9 But how then do you get over the difficulty [in the case of the land tax]? [By supposing that] the father pays the land tax of the year before he dies. Similarly with the poll tax; [we suppose that] the father pays it [for the year] before he dies.10
R. Ashi further said: I questioned the scribes of Raba [on this point], and they told me that the law is in accordance with the ruling of R. Huna the son of R. Joshua.11 This, however, is not correct, and they only said so to put themselves in the right.12
R. Ashi further said: A man of leisure13 must assist the community [to pay its levy].14 This, however, is only if the community saved him from being taxed separately;15 but if the tax collectors [exempted him],16 then Providence Was kind to him.
R. Assi said in the name of R. Johanan: A boundary and a cistus17 hedge serve as a partition in the estate of a proselyte;18 not, however, for purposes of pe'ah19 and uncleanness.20 When Rabin came,21 he said in the name of R. Johanan: For purposes of pe'ah and uncleanness also. How does a partition affect pe'ah? - As we have learnt: 'These are the things which cut a field into two with respect to pe'ah:22 a river, a rivulet,
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(1) I.e., that of Rab.
(2) V. supra p. 211, no. 10
(3) If a Persian has been in occupation of a piece of land for forty years, and a Jew then buys it from him, his title is impregnable, although according to Jewish law it would not be impregnable (v. supra 35b). The meaning, however, may also be that in Persia 40 years' occupation is required to confer a title of ownership (even on an Israelite) and not three.
(4) Zaharuri (derivation uncertain) - men who paid to the Government the tax on land, the owners of which were in arrears, and so became owners of the land; or, according to others, the collectors of the land tax. As this transference of land was legal according to Persian law, Jews were allowed to buy the land from these people.
(5) I.e., it had to be collected from him personally and not from a distress on his property. Hence if the officials of the Government transferred his land to the zaharuri for payment of this tax they were exceeding their powers, and the Rabbis therefore refused to recognise the subsequent purchase of such land by a Jew. [On the terms כרגא (poll-tax) and טסקא (land tax), as well as on the Persian law recorded here, v. Obermeyer, op. cit. p. 221, n. 3.]
(6) Hence the Government officials would be justified in transferring the land, and the subsequent purchase by a Jew would be valid.
(7) Deut. XXI, 17.
(8) Since the whole of a man's property was liable to be seized by the Government on account of his poll tax, it was not actually his at the time of death, but was due to become his when he should have paid his tax. The Rabbinical rule was that the firstborn received a double portion only of the actual assets, not of those which were due to accrue later. V. infra 119a
(9) This also renders all assets 'prospective' instead of 'actual', and therefore there would seem to be no ground for the distinction between the land tax and the poll tax made above, which Amemar also accepts.
(10) And therefore the property he leaves is 'actual' and not 'prospective'.
(11) That fields transferred for non-payment of poll tax could be bought by Jews.
(12) Because they had themselves made out deeds of such sales.
(13) Who does not engage in any kind of work, trade or commerce.
(14) The tax imposed on it by the Government.
(15) By interceding on his behalf with the officials. As by so doing the community would increase its own burden, since it would have to make up the deficiency, it had the right to demand assistance from him.
(16) And did not demand any equivalent for his tax from the rest of the community.
(17) חצב, a hard kind of date tree.
(18) So that a separate act is required for acquiring the fields on each side of the hedge or boundary.
(19) Lit., 'corner', v. Lev. XXIIII, 22.
(20) As explained in what follows.
(21) From Palestine to Babylon.
(22) So that pe'ah has to be given from the fields on each side.a public carriage road1 or a private carriage road,2 a public field-path or a private field-path which is used both in the dry and the rainy season.'3 How does the partition affect uncleanness? - As we have learnt:4 'If a man goes into a plain5 in the rainy season where there is known to be uncleanness6 in a certain field, and he says, I went to that place [i.e. plain] but I do not know if I went to that spot or not, R. Eliezer declares him clean and the Sages declare him unclean,'for R. Eliezer used to say that 'if there is a doubt whether a man entered a place of uncleanness he is clean, but if there is a doubt whether he touched an unclean thing, he is unclean.'7
In respect of Sabbath, however, these things do not form a partition.8 Raba, however, says that they form a partition even in respect of Sabbath, as it has been taught: If a man takes out half a dry fig into a public place,9 and puts it down and then takes out another half a dry fig, in one spell of unawareness that it was Sabbath, he is penalised [for breaking the Sabbath],10 but if under two spells of unawareness, he is not penalised.11 R. Jose said: If he
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(1) Of 16 cubits width.
(2) Of 4 cubits.
(3) I.e., even in the ploughing season when many paths are closed (Pe'ah II, 1).
(4) Toh. VI, 5.
(5) A stretch of cultivable land divided into fields.
(6) I.e., a grave.
(7) Ibid. VI, 4. We suppose that there is a boundary or hedge in the plain, and since this divides it Into separate fields, he is doubtful even if he entered the field where the grave was, and therefore according to R. Eliezer he is clean.
(8) In the matter of carrying on Sabbath from a private to a public place or vice versa.
(9) If anyone takes out from a private to a public place an article not smaller than a fig and sets it down there, he is liable to punishment for breaking the Sabbath.
(10) Because he has taken out one whole fig.
(11) Because he has only taken out half a fig twice.[takes the two half-figs] in one state of unawareness into the same public place, he is penalised, but if into two different public places, he is not penalised.1 This too, said Rabbah, is only the case if there is between the two public places a place the carrying into which [from either of them would] render him liable to a sin offering,2 but not if there is only a karmelith3 in between.4 Abaye said: Even if there is a karmelith between [he is not penalised], but not if there is. only a block [of wood].5 Raba said: Even if there is a block of wood between [he is not penalised]. Raba's view here [that such a block can form a partition] conforms with his other view that a 'place' in respect of Sabbath has the same meaning as a 'place' in respect of divorces.6 If there is no boundary nor cistus hedge [in the plain], what is the ruling?7 - R. Merinus explained in his [R. Eliezer's] name that 'all to which his name is applied [is reckoned as one field].' How are we to understand this? - R. Papa said: If for instance people call it, 'The field of so-and-so's well.'
As R. 'Aha b. Awia was once sitting in front of R. Assi, he laid down the following rule in the name of R. Assi b. Hanina: A cistus hedge forms a partition in the estate of a proselyte. What is a cistus hedge? - Rab Judah said in the name of Rab: The plant with which Joshua marked the boundaries of the land of Canaan for the Israelites.8
Rab Judah also said in the name of Rab: Joshua [in his book]9 enumerated only the towns on the borders.10
Rab Judah said in the name of Samuel: All the land which God showed Moses11 is subject to [the obligation],of tithe. Which part of the land does this exclude?12 - It excludes the Kenite, the Kenizite and the Kadmonite. It has been taught: R. Meir says that [these are] the Nabateans, the Arabians and the Salmoeans.13 R. Eliezer says they are Mount Seir, Ammon and Moab. R. Simeon says they are Ardiskis, Asia and Aspamia.14
MISHNAH. IF TWO MEN TESTIFY THAT A CERTAIN MAN HAD THE USUFRUCT OF15 A PIECE OF LAND FOR THREE YEARS AND THEY ARE FOUND TO BE ZOMEMIM,16 THEY MUST PAY TO THE CLAIMANT ALL [THAT HE STOOD TO LOSE THROUGH THEIR FALSE EVIDENCE].17 IF TWO [TESTIFY THAT THE OCCUPIER HAD THE USUFRUCT] FOR ONE YEAR, TWO FOR A SECOND YEAR, AND TWO FOR THE THIRD YEAR, [AND THEY ARE FOUND TO BE ZOMEMIM],18
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(1) Because here too the two actions are not combined.
(2) I.e., a private place, this being regarded as an effective division.
(3) As for instance, an unfenced plain, which is not an effective division. For the meaning of karmelith, v. Glos.
(4) Because the two public places are still regarded as one. Hence he is penalised.
(5) Less than 10 handbreadths high and 4 broad.
(6) If a man transfers his courtyard to his wife and then throws her a get into it and it lights on such a block, she is not divorced, because the block is not included in the courtyard transferred to the wife. Hence here he is not penalised.
(7) How far does the danger of uncleanness extend? [This is a quotation from Tosef., Toh. VII; v. Tosaf.]
(8) I.e., the boundaries between the tribes, families and individuals. According to tradition, this plant was chosen for the purpose because its roots go straight down and do not spread on either side; hence neither neighbour could complain that the other was encroaching.
(9) According to the Talmud, Joshua was the author of the book which bears his name. V. supra 8a.
(10) In Josh. XV-XIX.
(11) v. Deut. XXXIV, 1-3.
(12) I.e., which part of the land promised to Abram (Gen. XV, 18-21) was not shown to Moses on Mount Nebo?
(13) Tribes of North Arabia.
(14) Asia and Aspamia (Apamea) were names usually given to places in Asia Minor. But probably places nearer Palestine were meant. [V. Weinstein, Essaer, p. 18.]
(15) Lit., 'ate'.
(16) V. Glos.
(17) I.e., not only does he recover the land from the occupier, but the witnesses have to pay him the amount of money he stood to lose.
(18) That is to say, if all are found to be false.EACH SET PAYS THE CLAIMANT A THIRD. IF THREE BROTHERS TESTIFY [ONE TO EACH YEAR] EACH ALONG WITH THE SAME SECOND WITNESS, THEN THREE TESTIMONIES [OF TWO WITNESSES EACH] ARE OFFERED1 [ONE FOR EACH YEAR], BUT THE THREE ARE RECKONED AS ONE FOR THE PURPOSE OF DECLARING THE WITNESSES ZOMEMIM.2
GEMARA. Our Mishnah does not agree with R. Akiba, for it has been taught: Rabbi Jose said: When my father Halafta went to R. Johanan ben Nuri to study Torah with him (according to another report, when R. Johanan ben Nuri went to Abba Halafta to study Torah with him), he said to him: Suppose a man had the usufruct of a piece of land for one year to the knowledge of two people, and for a second year to the knowledge of two other people, and for a third year to the knowledge of two others, how do we decide? He replied: This constitutes a title. Said the other: That is my opinion also, but R. Akiba differs in this respect, for he used to say: [Scripture states:] A 'matter' [shall be established by two witnesses],3 and not half a matter.4 And how do the Rabbis apply the principle of a 'matter' and not half a matter?5 Shall I say that It is to invalidate the evidence where one witness says that there was one hair on her back and the other says that there was one hair in front?6 This is not only half a matter but also half a testimony! -7 No; they would in virtue of it invalidate the evidence where two witnesses testify that there was one hair on her back and two that there was one in front.8 Rab Judah said: If one witness says that the occupier took crops of wheat off the land and the other that he took crops of barley, this constitutes hazakah.9 R. Nahman strongly dissented from this. On this ground, he said, if one witness said that he took crops in the first, third, and fifth years, and the other that he took crops in the second , fourth, and sixth, this would also constitute hazakah?10 - Said Rab Judah to him: Where is the parallel? There [in your case] the year referred to by the one [witness] is not referred to by the other, but here [in my case] both testify regarding the same year. And why do we ignore their discrepancy? Because people easily make a mistake between wheat and barley.11
IF THREE BROTHERS TESTIFY EACH ALONG WITH THE SAME SECOND WITNESS, THEN THREE TESTIMONIES ARE OFFERED, BUT THE THREE ARE RECKONED AS ONE FOR THE PURPOSE OF DECLARING THE WITNESSES ZOMEMIM.
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(1) If two or three brothers testify to the same thing they are only counted as one witness, but here, as they testify to separate years, they are reckoned as separate witnesses, and each one forms a pair with the other witness.
(2) I.e., they cannot be declared zomemim till the evidence of all four has been proved to be false, and in that case each pays one-sixth.
(3) Deut. XIX, 15.
(4) And here no two witnesses testify to more than one year of occupation, which is only a third of the matter in hand.
(5) Who say that each set may testify to a different year.
(6) The reference is to the two hairs which are the sign of puberty in a girl, v. Nid. 52a.
(7) There being one witness where two are required.
(8) But not where different witnesses testify to different years, each year being a 'whole matter'.
(9) In spite of the discrepancy between the witnesses.
(10) Here also there is a similar contradiction between the witnesses, since we suppose each of them to assert that in the intervening years the land was left fallow (Tosaf.).
(11) Lit., 'What is there to be said? Between wheat and barley, people are not particular'.A certain document [was brought into court] bearing the signatures of two witnesses, one of whom had died. The brother of the one who was still alive came with another witness to testify to the signature of the other [the deceased]. Rabina was disposed to decide that this case was covered by the Mishnah of three brothers each associated with the same witness.1 Said R. Ashi to him: Surely the cases are not on all fours. In that case [if the evidence of the brothers was accepted] three-quarters of the money would not be assigned on the evidence of brothers, but in this case [if we allow this man to testify] three-quarters of the money will be assigned on the evidence of brothers.2
MISHNAH. CERTAIN USAGES CONSTITUTE HAZAKAH, WHILE CERTAIN OTHERS THOUGH SIMILAR DO NOT CONSTITUTE HAZAKAH.3 IF A MAN WAS IN THE HABIT OF STATIONING HIS BEAST IN A COURTYARD OR OF FIXING THERE HIS OVEN, HANDMILL, PORTABLE STOVE OR HEN-COOP, OR OF THROWING HIS MANURE THERE, THIS DOES NOT CONSTITUTE HAZAKAH. BUT IF HE HAS BEEN ALLOWED TO PUT UP A PARTITION FOR HIS BEAST TEN HANDBREADTHS IN HEIGHT, OR FOR HIS OVEN OR HIS STOVE OR HIS HANDMILL, OR IF HE HAS BEEN ALLOWED TO BRING FOWLS INTO THE HOUSE OR TO MAKE A PIT FOR HIS MANURE THREE HANDBREADTHS DEEP OR A HEAP THREE HANDBREADTHS HIGH, THIS CONSTITUTES HAZAKAH.
GEMARA. Why is the rule in the second case different from that in the first?4 - 'Ulla said: Any act which confers legal ownership of the property of a deceased proselyte5 confers legal ownership of that of a fellow Jew,6 and any act which does not confer legal ownership of the property of a deceased proselyte does not confer legal ownership of property of a fellow Jew.7 R. Shesheth raised strong objections against this. Is this, [he asked] a general principle?8 What of ploughed land which confers ownership of the property of a deceased proselyte but not of that of a fellow Jew?9 And what of the gathering of crops , which confers ownership of property of a fellow Jew but not of the property of a deceased proselyte?10 No, said R. Nahman in the name of Rabbah b. Abbuha;
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(1) Here too one brother joins with one man as witness to a bond and the other with another man in testifying to the genuineness of a signatures and so the testimony of the two brothers could be regarded as relating to separate things, and they could count as independent witnesses.
(2) Each of the two original witnesses is regarded as warranting the assignment of half the money to the holder of the bond. Consequently, each of the witnesses to the dead man's signature is regarded as warranting the assignment of a quarter of the money. Hence three-quarters of the money is assigned on the warrant of two brothers who by rights ought not to count as more than a single witness.
(3) If they are allowed to go on without protest for three years, and the claim is supported by a plea of purchase or gift.
(4) Why should the making of a partition confer a hazakah and not the mere stationing?
(5) On the person who seizes it first. V. p. 181, n. 5.
(6) If the latter has said, 'Go, occupy and acquire ownership,' or if he occupied it for three years.
(7) According to 'Ulla, therefore, the Mishnah is speaking of an outsider and defining the conditions under which he obtains hazakah in a courtyard.
(8) Even though it is correct in respect of this Mishnah.
(9) By means of three years' occupation. V. supra 37b.
(10) For acquiring the property of a proselyte the essential thing is to perform some action which improves the property; for acquiring hazakah in property formerly belonging to a fellow Jew, the essential thing is to have the usufruct of the property.we are dealing here with a courtyard belonging to several joint owners, who do not object to [any one of their number] merely stationing things there, but who do object to [his making] a partition there.1 But do they not object to things being merely stationed [there]? Have we not learnt that joint owners of a courtyard who have vowed to have no benefit from one another are forbidden to enter the courtyard?2 - The truth is, said R. Nahman in the name of Rabbah b. Abbuha, that we are dealing here with the open space behind the houses, where the owners do not mind things being stationed, but where they do mind a partition being made. R. papa said: In both cases [of the vow and of the beast etc.] we are dealing with a courtyard of joint owners, [and the reason why the rule is different is this:] Some owners are particular and some are not. Where the issue is a pecuniary one,3 we take the more lenient view.4 But where the issue is one of [breaking] a religious precept,5 we take the more stringent view.6 Rabina said: Indeed we assume in all cases that the joint owners are not particular,7 and the rule [regarding vows] is based on the opinion of R. Eliezer, as it has been taught: R. Eliezer says, One who has vowed to receive no benefit from another is forbidden to take even a makeweight from him.8
R. Johanan said in the name of R. Bana'ah: Joint owners of a courtyard can stop one another from using the courtyard for any purpose save that of washing [clothes], since it is not fitting that the daughters of Israel should expose themselves to the public gaze while washing [clothes].9 It is written: [The righteous one is] he that shutteth his eyes from looking upon evil,10 and [commenting on this] R. Hiyya b. Abba said: This refers to a man who does not look at the women when they are washing [clothes]. How are we to understand this? If there is another road, then if [he does not take it] he is wicked.11 If there is no other road, then how can he help himself? - We suppose that there is no other road, and even so it is incumbent on him to hide his eyes from them.12
R. Johanan asked R. Bana'ah13 how [long] the under-garment14 of a talmid hakam15 [should be]. He replied: So long that his flesh should not be visible beneath16 it. How [long should] the upper garment of a talmid hakam [be]? - So long that not more than a handbreadth of his under-garment should be visible underneath. How should the table of a talmid hakam be laid? - Two-thirds should be covered with a cloth and the other third should be uncovered for putting the dishes and vegetables on;17 and the ring18 should be outside.19 But has it not been taught that the ring should be inside?20 - There is no contradiction. In one case [we suppose] there is a child at the table,21 and in the other that there is no child. Or if you like I can say [that in both cases [we suppose] there is no child, and still there is no contradiction: in one case [we suppose] there is a waiter at table22 and in the other there is no waiter.23 Or if you like I can say that in both cases [we suppose] there is a waiter, and still there is no contradiction; in the one case we refer to the day24 and in the other to the night. The table of an 'am ha'arez25 is like
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(1) Hence if he makes a partition and they do not object, this constitutes hazakah, but so long as there is no partition his using the courtyard constitutes no hazakah, though it would in the case of an outsider.
(2) This shows that they are particular even about one another standing in the courtyard, for otherwise such standing could not be called a benefit derived from the other.
(3) I.e., in the case of using the courtyard.
(4) I.e., we assume that the other residents do not mind him putting his beasts etc. there, and since they do not mind, they do not formally object to his action, and therefore it does not constitute hazakah.
(5) In the case of a vow.
(6) We assume that the others do mind his standing in the courtyard. Hence if they allow him to do so, and he does, he would be deriving a benefit from them and so breaking his vow.
(7) And therefore by rights the vow would not be broken by the act of standing in the courtyard.
(8) If the man who has made the vow buys 100 nuts from the other, and he gives him one or two over, as to all customers, he may not accept them. Similarly, by standing in the courtyard the man who has made the vow receives a certain benefit from the other, even though the latter claims (as against him) no ownership in the courtyard.
(9) As they would if they have to go down to the river to do so.
(10) Isa. XXXIII, 15.
(11) Because it is a duty to keep away from temptation.
(12) Lit., 'to constrain himself'.
(13) Having mentioned R. Bana'ah the text adduces a number of his sayings and doings.
(14) Or 'shirt'.
(15) I.e., a scholar. v. Glos.
(16) I.e., it should come right down to his feet.
(17) So that they should not dirty the cloth. According to some, the bare space was to be in the middle.
(18) By which the table-top was hung up when not in use.
(19) I.e. , on the bare part.
(20) I.e., the part near the guests.
(21) And then it should be outside, because otherwise the child may play with it and upset the table.
(22) And it should be inside, because if it is outside, it may get in his way.
(23) And it should be outside, so as not to get in the way of the company.
(24) When the waiter can avoid it, and therefore the convenience of the company can be consulted by having it outside.
(25) V. Glos.a hearth with pots all round.1 What is the sign of the bed of a talmid hakam? - That nothing is kept under it save sandals in the summer season and shoes in the rainy season.2 But the bed of an 'am ha' arez is like a packed storeroom.3
R. Bana'ah used to mark out caves [where there were dead bodies].4 When he came to the cave of Abraham,5 he found Eliezer the servant of Abraham standing at the entrance. He said to him: What is Abraham doing? He replied: He is sleeping in the arms of Sarah, and she is looking fondly at his head. He said: Go and tell him that Bana'ah is standing at the entrance. Said Abraham to him: Let him enter; it is well known that there is no passion in this world.6 So he went in, surveyed the cave, and came out again. When he came to the cave of Adam,7 a voice came forth from heaven8 saying Thou hast beholden the likeness of my likeness,9 . my likeness itself thou mayest not behold.10 But, he said, I want to mark out the cave. The measurement of the inner one is the same as that of the outer one [came the answer]. (Those who hold that there was one chamber above another [say that the answer was], The measurement of the lower one is the same as that of the upper one.) R. Bana'ah said: I discerned his [Adam's] two heels, and they were like two orbs of the sun. Compared with Sarah, all other people are like a monkey to a human being, and compared with Eve Sarah was like a monkey to a human being, and compared with Adam Eve was like a monkey to a human being, and compared with the Shechinah Adam was like a monkey to a human being. The beauty of R. Kahana was a reflection of [the beauty of Rab; the beauty of Rab was a reflection of]11 the beauty of R. Abbahu; the beauty of R. Abbahu was a reflection of the beauty of our father Jacob, and the beauty of Jacob was a reflection of the beauty of Adam.
There was a certain magician who used to rummage among graves.12 When he came to the grave of R.Tobi b. Mattenah (R.Tobi) took hold of his beard. Abaye13 came and said to him: 'pray, leave him.' A year later he again came, and he [the dead man] took hold of his beard, and Abaye again came, but he [the dead man] did not leave him till he [Abaye] had to bring scissors and cut off his beard.
A certain man [when on his deathbed] said: I leave a barrel of dust to one of my sons, a barrel of bones to another, and a barrel of fluff to the third. They could not make out what he meant, so they consulted R. Bana'ah. He said to them: Have you any land? We have, they replied. Have you cattle? Yes. Have you cushions? Again the answer was in the affirmative. If so, said R. Bana'ah, that is what your father meant.
A certain man heard his wife say to her daughter, Why do you not observe more secrecy in your amours?14 I have ten children, and only one is from your father. When [the man was] on his deathbed, he said, I leave all my property to one son. They had no idea which of them he meant, so they consulted R. Bana'ah. He said to them: Go and knock at the grave of your father, until he gets up and tells you which one of you [he has made his heir]. So they all went to do so. The one who was really his son, however, did not go. R. Bana'ah thereupon said: All the estate belongs to this one. They then went and slandered him before the king, saying: There is a man among the Jews who extorts money from people without witnesses or anything else. So they took him and threw him in prison. His wife came [to the Court] and said: I had a slave, and some men have cut off his head, skinned him, eaten the flesh and filled the skin with water and given students to drink from it, and they have not paid me either its price or its hire. They did not know what to make of her tale, so they said: Let us fetch the wise man of the Jews and he will tell us. So they called R. Bana'ah, and he said to them: She means a goat-skin bottle. They said: Since he is so wise, let him sit in the gate and act as judge. He saw that there was an inscription over the gateway, 'Any judge who is sued in court is not worthy of the name of judge'. He said: If that is so, any man from the street can come and
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(1) Because he puts the cloth and the bread in the middle and the dishes all round.
(2) Sandals were worn in the winter and shoes in the summer, and each was put away under the bed when not in use.
(3) So many things are under it.
(4) He placed marks outside over the place of the graves, so that people should not walk over them and become unclean.
(5) Machpelah.
(6) And therefore there could be no objection to his seeing Abraham sleeping with Sarah.
(7) According to tradition, Adam and Eve were also buried in the cave of Machpelah, according to one version in an inner cave, and according to another in a lower one.
(8) Bath kol, lit., 'daughter of a voice'.
(9) Abraham who was the likeness of Adam.
(10) Adam who was made in the likeness of God.
(11) According to another reading, this clause is omitted.
(12) [Persian fire worshippers considered it sinful to defile Mother Earth with dead bodies. They would accordingly rummage among Jewish graves, exhume the bodies and expose them to the birds. 'Magician' stands here for a Gueber, as in many other places in the Talmud, v. Perles, J., Die Leichenfeierlichkeiten im nachbiblischen Judentum, p. 8.]
(13) Who was apparently a friend of the magician.
(14) Lit., 'forbidden acts'.sue the judge and so disqualify him. What it should say is, 'Any judge who is sued in court and against whom judgment is given is no true judge'.1 They therefore wrote: But the elders of the Jews say, 'Any judge who is sued in court and against whom judgment is given is no true judge'. He saw another inscription which ran, 'At the head of all death am I, Blood: At the head of all life am I, Wine'. [How can that be? he said.] If a man falls from a roof or a date-tree and kills himself, does he die from excess of blood? And again, if a man is on the point of death, do they give him wine to drink? No. What should be written is this: 'At the head of all sickness am I, Blood, At the head of all medicine am I, Wine'. They therefore wrote: 'But the elders of the Jews say, At the head of all sickness am I, Blood, At the head of all medicine am I, Wine; only where there is no wine are drugs required'.
Over the gateway of Kaputkia2 there was an inscription, Anpak,, anbag, antal.3 And what is an 'antal'?4 It is the same as the 'fourth part in Jewish ritual measurements.5
MISHNAH. THERE IS NO HAZAKAH6 FOR A GUTTERPIPE,7 BUT THERE IS FOR ITS PLACE.8 THERE IS HAZAKAH FOR A ROOFGUTTER.9 THERE IS NO HAZAKAH FOR AN EGYPTIAN LADDER BUT THERE IS FOR A TYRIAN. THERE IS NO HAZAKAH FOR AN EGYPTIAN WINDOW BUT THERE IS FOR A TYRIAN. WHAT IS AN EGYPTIAN WINDOW? ONE THROUGH WHICH A MAN CANNOT PUT HIS HEAD. R. JUDAH SAYS THAT IF IT HAS A FRAME, EVEN THOUGH A MAN CANNOT PUT HIS HEAD THROUGH IT, THERE IS HAZAKAH FOR IT.
GEMARA. What [is meant by Saying that] THERE IS NO HAZAKAH FOR A GUTTER-PIPE BUT THERE IS FOR ITS PLACE? - Rab Judah said in the name of Samuel: It means this. There is no hazakah for the gutter-pipe at one particular end of the gutter,10 but there is a hazakah for it to be placed either at one end or the other.11 R. Hanina said: There is no hazakah for the gutterpipe12 [to the extent] that if he [the owner of the courtyard] finds it too long he can have it shortened, but there is hazakah for its place [to the extent] that if he wants to remove it altogether he is not at liberty to do so. R. Jeremiah b. Abba said: There is no hazakah for a gutter [in so far] that if he [the owner of the courtyard] desires to build under it he may do so,13 but there is hazakah for its place [to the extent] that if he wants to remove it altogether, he is not at liberty to do so.
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(1) Because this shows that he is capable of taking bribes.
(2) Cappadocia.
(3) According to Rashb., there were three alternative names for a certain measure of capacity. According to Tosaf. anpak. and anbag were the names of a certain medicine of which the proper draught was an antal.
(4) A fourth part of a log = an egg and a half, the standard measurement for a cup of wine on Passover eve and other ritual observances. v. Nazir, 38a.
(5) Lit., 'of the Torah'.
(6) I.e., no title is conferred by uninterrupted use or possession.
(7) A movable pipe hanging down from a gutter on a roof.
(8) This is explained in the Gemara, infra.
(9) The whole of this Mishnah is explained in the Gemara.
(10) The fact that the owner of the courtyard has allowed the owner of the roof to keep his pipe overhanging the yard for three years without protest does not confer on him a permanent right to do so, because as it is not a fixture the owner of the courtyard is not particular about it, and therefore the fact of his not protesting is nothing to go by.
(11) Because a pipe at one end or the other is necessary for the roof and therefore it is to a certain extent a fixture.
(12) I.e., the owner of the roof has no title to it.
(13) Since ownership of the gutter confers no title to the space under it.We learnt: THERE IS HAZAKAH FOR A ROOF-GUTTER.1 This fits in with the first two of the views [just adduced]2 but on the view that [the Statement that 'there is no hazakah for a gutterpipe' means that] if the owner of the courtyard wants to build under it he may do so, what does it matter to him [the owner of the gutter]?3 - We are dealing here with a gutter of stone, the owner of which can say, I do not want my stonework to be weakened [by building carried on underneath].4
Rab Judah said in the name of Samuel: If a man has a pipe [on his roof] from which water drips into his neighbour's courtyard and he wants to stop it up the owner of the courtyard can prevent him, saying, Just as you have property in the courtyard for pouring your water into It, so I have property in the water that comes from your roof.5 It has been stated: R. Oshaia said that the owner of the courtyard may prevent him, but R. Hama6 said he may not. They7 went and asked R. Bisa,8 who replied that he can prevent him. Rami b. Hama applied to him [R. Oshaia] the verse, A threefold cord is not easily broken.9 This [he said], is exemplified in R. Oshaia the son of R. Hama who is the son of R. Bisa.10
THERE IS NO HAZAKAH FOR AN EGYPTIAN LADDER.11 How is an Egyptian ladder to be defined? - The school of R Jannai defined it as one which has not four rungs.
THERE IS NO HAZAKAH FOR AN EGYPTIAN WINDOW.12 Why should a definition be given [in the Mishnah] of an Egyptian window and not of an Egyptian ladder? - Because [in regard to the size of the window] the dissentient opinion of R. Judah was to be recorded in the next clause. R. Zera said: There is hazakah [for a Tyrian window] if it comes lower than four cubits [from the floor of the room],13 and the owner of the courtyard can prevent [one from being made in the first instance];14 but if it is more than four cubits from the floor, there is no hazakah for it15 and the owner of the courtyard cannot prevent [it from being made]. R. Elai, however, said that even if it is more than four cubits from the floor there is no hazakah for it, and [yet] the owner of the courtyard can prevent it from being made.16 May we say that the point at issue between them [R. Zera and R. Elai] is whether or not we force a man to abandon a dog-in-the manger attitude,17 one [R. Zera] holding that we do and the other that we do not? - No. Both are agreed that we do, and here [R. Elai] makes a difference because the [owner of the courtyard] can say to the other, You might at times place a stool under yourself and stand on it and see [into my courtyard].18
A certain man appealed to R. Ammi. The latter sent him to R. Abba b. Memel, telling him, Decide according to the opinion of R. Elai.19 Samuel said: If [a window is necessary] to let in light, however small it is there is hazakah for it.20
MISHNAH. FOR A SPAR21 [WHICH PROJECTS NOT LESS THAN] A HAND BREADTH THERE IS HAZAKAH22
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(1) This being a fixture, if the owner of the courtyard does not protest against its overhanging his yard during three years, the owner of the gutter may claim a prescriptive right to keep it there.
(2) The views of Samuel and R. Hanina regarding a gutter-pipe.
(3) For why should the owner of the gutter have hazakah to the extent that he should be able to object to the owner of the courtyard building under it, and why in any case should he raise such an objection?
(4) But as a gutter-pipe is usually made of wood, there is no ground for a similar complaint if building is carried on under it.
(5) For providing water for his cattle.
(6) Father of R. Oshaia.
(7) So in some texts.
(8) Father of R. Hama.
(9) Eccl. IV, 12.
(10) Tosaf. points out that examples were not rare of three generations of scholars in the same family, but the peculiarity of this case was that all three were alive at the same time.
(11) I.e., the fact that it has been allowed to remain in the neighbour's courtyard three years confers no right to keep it there permanently.
(12) Because, as it is too small to see much out of, the owner of the courtyard does not trouble to protest.
(13) Because then the owner of the room can look through it and see what is going on in his neighbour's courtyard. Hence if the latter does not protest, the former acquires hazakah.
(14) To save himself from the danger of being overlooked.
(15) Because, as it does not enable him to be overlooked, the owner of the courtyard does not trouble to protest.
(16) For the reason given below, that the other may stand on a stool and look through.
(17) Lit., 'the characteristic of Sodom': doing something which vexes his neighbour without benefiting himself. V. supra 12b.
(18) Hence we cannot say that the owner of the courtyard derives no benefit from preventing the other from making his window four cubits above the floor, and therefore he is at liberty to prevent him.
(19) Which shows that this is the law (Rashb.).
(20) And if the owner of the courtyard does not protest in time, it may be kept there permanently.
(21) A spar projecting from the roof of a house over a neighbour's courtyard.
(22) So that the owner of the courtyard cannot remove it after a certain time.AND THE OWNER OF THE COURTYARD CAN PREVENT IT BEING MADE [IN THE FIRST INSTANCE]. IF IT IS LESS THAN A HANDBREADTH THERE IS NO HAZAKAH FOR IT AND HE CANNOT PREVENT IT [FROM BEING MADE].
GEMARA. R. Assi said in the name of R. Mani (or, according to others, R. Jacob said in the name of R. Mani): If he obtains a right to a handbreadth he obtains a right to four. What is the meaning of this?1 - Abaye said: It means that if he has obtained a right to a width of a handbreadth with a length of four, he ipso facto obtains a right to a width of four.2
IF IT IS LESS THAN A HANDBREADTH THERE IS NO HAZAKAH FOR IT AND HE CANNOT PREVENT IT [FROM BEING MADE]. R. Huna said: This only means that the owner of the roof cannot prevent the owner of the courtyard [from using it],3 but the owner of the courtyard can prevent the owner of the roof.4 Rab Judah, however, said that the owner of the courtyard cannot prevent the owner of the roof either. May we say that the point at issue between them is whether overlooking [constitutes a genuine damage], one holding that it does, and the other that it does not?5 - No. Both consider overlooking to constitute a genuine damage but here6 the case [according to Rab Judah] is different because the owner of the roof can say to the other: I cannot actually do anything on this spar. All I can do with it is to hang things on it. When I do that, I will turn my face away. And the other [R. Huna]?- [He can rejoin that] the other may say to him: You may become afraid [of falling, and not turn your face away].7
MISHNAH. A MAN SHOULD NOT LET HIS WINDOWS OPEN ON TO A COURTYARD WHICH HE SHARES WITH OTHERS. IF HE TAKES A ROOM IN ANOTHER [ADJOINING] COURTYARD, HE SHOULD NOT MAKE AN ENTRANCE TO IT IN A COURTYARD WHICH HE SHARES WITH OTHERS. IF HE BUILDS AN UPPER CHAMBER OVER HIS HOUSE, HE SHOULD NOT MAKE THE ENTRANCE TO IT IN A COURTYARD WHICH HE SHARES WITH OTHERS. BUT HE MAY IF HE PLEASES MAKE AN INNER CHAMBER IN HIS HOUSE AND THEN BUILD AN UPPER CHAMBER OVER HIS HOUSE AND MAKE THE ENTRANCE FROM HIS HOUSE.8
GEMARA. [A MAN SHOULD NOT LET HIS WINDOWS OPEN etc.] Why only in a courtyard which he shares with others? Surely the prohibition should apply also to the courtyard of his neighbour? - The Mishnah takes an extreme case. On the courtyard of his neighbour he may certainly not let his windows open out.9 But in the case of a courtyard which he shares with others he can say [to the other owner]: In any case you have to take steps to preserve your privacy from me in the courtyard.10 We now learn therefore that the other can reply: Up to now I had to take steps to preserve my privacy only in the courtyard, but now [if you make this window] I shall have to do so in my house also.11
Our Rabbis taught : A certain man made windows opening on to a courtyard which he shared with others.12 He was [eventually] summoned before R. Ishmael son of R. Jose, who said to him: You have established your right , my son.13 He was then brought before R. Hiyya, who said: As you have taken the trouble to open them, so you must take the trouble to close them.14
R. Nahman said:
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(1) On the face of it the statement is absurd, since if the owner of the courtyard would allow a spar of a handbreadth, it does not follow that he would allow one of four.
(2) A space of four handbreadths by four is reckoned something considerable', and therefore a length of four handbreadths carries a width of four with it, though a length of ten handbreadths would not carry with it any greater width.
(3) Although it is his property, because the owner of the courtyard can at any time tell him to remove it.
(4) Either from using it or from making it in the first instance.
(5) The owner of the courtyard can be 'overlooked' from the spar by the owner of the roof, but not vice versa.
(6) In the case of a spar less than one handbreadth.
(7) And so overlook my courtyard.
(8) The reasons for all these rules are explained in the Gemara.
(9) Because he interferes with his neighbour's privacy.
(10) Because I share the courtyard. and therefore the addition of a window will make no difference.
(11) Alternatively we may translate: Till now I had to preserve my privacy when you were in the courtyard, now I shall have to do so when you are in your house also.
(12) Who made no objection at first.
(13) Because the others did not protest immediately. This accords with R. Ishmael's dictum recorded supra 41a: 'an action done in the presence of the owner constitutes hazakah.'
(14) Because for establishing such a right three years are required.For closing a window1 a right is established immediately [if the action is unchallenged], because a man will not allow his light to be obstructed without protest.
IF A MAN TAKES A ROOM IN ANOTHER [ADJOINING] COURTYARD, HE SHOULD NOT MAKE AN ENTRANCE TO IT IN A COURTYARD WHICH HE SHARES WITH OTHERS. What is the reason? - Because he brings too many visitors [through the courtyard].2 Look then at the following clause: HE MAY IF HE PLEASES BUILD AN INNER CHAMBER IN HIS HOUSE AND THEN BUILD AN UPPER CHAMBER OVER HIS HOUSE AND MAKE THE ENTRANCE FROM THE HOUSE. Will not this also bring more people through the courtyard? - R. Huna said: When it says here [that he builds] a room, It means that he divides one of his rooms into two, and when it says [that he builds] an upper chamber, it means that he makes a balcony.3
MISHNAH. IN A COURTYARD WHICH HE SHARES WITH OTHERS A MAN SHOULD NOT OPEN A DOOR FACING ANOTHER PERSON'S DOOR NOR A WINDOW FACING ANOTHER PERSON'S WINDOW. IF IT IS SMALL HE SHOULD NOT ENLARGE IT, AND HE SHOULD NOT TURN ONE INTO TWO. ON THE SIDE OF THE STREET, HOWEVER, HE MAY MAKE A DOOR FACING ANOTHER PERSON'S DOOR AND A WINDOW FACING ANOTHER PERSON'S WINDOW, AND IF IT IS SMALL HE MAY ENLARGE IT OR HE MAY MAKE TWO OUT OF ONE.
GEMARA. Whence are these rules derived? - R. Johanan said: From the verse of the Scripture, And Balaam lifted up his eyes and he saw Israel dwelling according to their tribes.4 This indicates that he saw that the doors of their tents did not exactly face one another, whereupon he exclaimed: Worthy are these that the Divine presence should rest upon them!
IF IT IS SMALL HE SHOULD NOT ENLARGE IT. Rami b. Hama understood from this that if the door is of four cubits the owner should not make it eight because this would entitle him to eight cubits in the courtyard,5 but if it is of two cubits he is quite in order in making it four.6 Said Raba to him: [This is not so, because] the other can say to him, I can preserve my privacy if you have a small doorway but not if you have a large one.7
HE SHOULD NOT TURN ONE DOOR INTO TWO. Rami b. Hama understood from this that if the door is four cubits wide, he should not turn it into two doors of two cubits each, because this would entitle him to eight cubits in the courtyard,8 hut he would be quite in order in turning a door of eight cubits into two of four cubits each.9 Said Raba to him: [This is not so, because] the other can say to him, I can preserve my privacy from you if you have one door, but if you have two doors I cannot.10
ON THE SIDE OF THE STREET, HOWEVER, HE MAY MAKE A DOOR FACING ANOTHER PERSON'S DOOR. [The reason is] because he can say to him: In any case you have to preserve your privacy from the eyes of the passers-by11 [and therefore you may as well do so from me also].
MISHNAH. A CAVITY MUST NOT BE MADE UNDER A PUBLIC PLACE, [TO WIT,] PITS, DITCHES AND CAVES. R. ELIEZER PERMITS THIS PROVIDED [THAT THE SURFACE IS STRONG ENOUGH TO BEAR THE PASSAGE OF A WAGON LOADED WITH STONES. SPARS OR BEAMS MUST NOT BE ALLOWED TO PROJECT [FROM THE WALL OF A HOUSE] OVER THE PUBLIC WAY. THE OWNER MAY, HOWEVER, IF HE DESIRES DRAW BACK HIS WALL FROM THE STREET AND THEN ALLOW THEM TO PROJECT. IF A MAN BUYS A COURTYARD IN WHICH ARE SPARS AND BEAMS [PROJECTING], HE HAS A PRESCRIPTIVE RIGHT TO KEEP THEM THERE.
GEMARA. [R. ELIEZER SAYS etc.] Why do the Rabbis forbid this? - Because the surface may wear thin without being noticed.12
SPARS AND BEAMS MUST NOT BE ALLOWED TO PROJECT etc. R. Ammi had a spar projecting over an alley-way,13 and another man had a spar projecting over a public way. [Some passers-by objected]14 and he was summoned before R. Ammi. He said to him, Go and cut it down . But, said the man, you, Sir, also have a projecting spar? Mine, he replied, projects over an alley-way the residents of which have given me their consent. Yours projects over a street; who is there to surrender the [public's] rights?
R. Jannai had a tree which overhung the public way, and another man also had a tree overhanging the street. Some passers-by objected and he was summoned before R. Jannai. He said to him:
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(1) By building an obstruction in front of it.
(2) Presumably he builds the additional rooms for letting purposes.
(3) And though he thus obtains additional rooms for letting. he is perfectly within his rights.
(4) Num. XXIV, 2.
(5) V. supra 55a.
(6) Because even a door of two cubits entitles him to four cubits in the courtyard.
(7) According to Raba, the right to privacy overrides the right to yardspace.
(8) Four for each door.
(9) Since he would still only have eight cubits yard space.
(10) Because if one door is shut the other may still be open.
(11) Who can look through the door and the windows.
(12) Cf. supra 27b.
(13) Which is private property.
(14) These words occur in our texts, but in brackets.Go away now and come again tomorrow. During the night he sent and had his own tree cut down. On the next day the man came back and he told him to go and cut the tree down. He said: But you, Sir, also have one? He replied: Go and see. If mine is cut down, cut yours down, and if mine is not cut down you need not cut yours down. What was R. Jannai's idea at first [when he kept his tree] and afterwards [when he had it cut down]? - At first he thought that passers-by were glad of it because they could sit in its shade, but when he saw that they objected to it he had it cut down. Why did he not say to the man, Go and cut yours down and then I will cut down mine? - In conformity with the maxim of Resh Lakish, who said: [It is written] , Hithkosheshu wakoshu:1 trim yourselves and then trim others.
HE MAY, HOWEVER, IF HE DESIRES DRAW BACK HIS WALL FROM THE STREET AND ALLOW THEM TO PROJECT. The question was asked: If a man draws back [his wall] and does not at once let any beams project, may he do so subsequently?2 - R. Johanan said that though he has drawn back [the wall] he may still make projecting beams, while Resh Lakish said that once he has drawn back he cannot later make projecting beams. R. Jacob said to R. Jeremiah b. Tahlifa: I will explain this to you. On the question of projecting beams there is no difference of opinion [between the authorities], and both hold that they are permitted. Where they differ is on the question whether he may restore the walls to their former position, and the above statement should be reversed, [i.e.,] R. Johanan said that he may not go back to the original position and Resh Lakish said that he may. R. Johanan ruled that he may not, In accordance with the dictum of Rab Judah,3 who said: A path [between two fields] over which the public has established a right of way must not be damaged. Resh Lakish, however, says that he may; we rule thus [in the case of the path] because there is no other space available, but here [in the case of the street] there is still plenty of space available.4
IF A MAN BUYS A COURTYARD IN WHICH ARE SPARS AND BEAMS PROJECTING, HE HAS A PRESCRIPTIVE RIGHT TO KEEP THEM. R. Huna said: If the wall falls down he may build it [as it was before] . An objection was raised [against this from the following]: 'It is not proper to stucco or decorate or paint [our houses at the present time].5 If a man buys a house which is stuccoed or decorated or painted, he is entitled to keep it so. If it falls down, he should not rebuild it [so]'?6 - Where the prohibition is based on religious grounds , the case is different.7
Our Rabbis taught: A man should not stucco the front of his house with cement , but if he mixes sand or straw with it he may.8 R. Judah Says: A mixture of sand makes the cement stony,9 and therefore its use is forbidden, but straw is permitted.
Our Rabbis taught: When the Temple was destroyed for the second time,10 large numbers in Israel became ascetics, binding themselves neither to eat meat nor to drink wine. R. Joshua got into conversation with them and said to them: My sons, why do you not eat meat nor drink wine? They replied: Shall we eat flesh which used to be brought as an offering on the altar, now that this altar is in abeyance? Shall we drink wine which used to be poured as a libation on the altar, but now no longer? He said to them: If that is so, we should not eat bread either, because the meal offerings have ceased. They said: [That is so, and] we can manage with fruit. We should not eat fruit either, [he said,] because there is no longer an offering of firstfruits. Then we can manage with other fruits [they said]. But, [he said,] we should not drink water, because there is no longer any ceremony of the pouring of water.11 To this they could find no answer, so he said to them: My sons, come and listen to me. Not to mourn at all is impossible, because the blow has fallen. To mourn overmuch is also impossible, because we do not impose on the community a hardship which the majority cannot endure, as it is written, Ye are cursed with a curse,12 yet ye rob me [of the tithe], even this whole nation.13 The Sages therefore have ordained thus. A man may stucco his house, but he should leave a little bare.
(How much should this be? R. Joseph says, A cubit square; to which R. Hisda adds that it must be by the door.)14 A man can prepare a full-course banquet, but he should leave out an item or two.
(What should this be? R. Papa says: The hors d'oeuvre of salted fish.) A woman can put on all her ornaments, but leave off one or two.
(What should this be? Rab said: [Not to remove] the hair on the temple.)15 For so it says, If I forget thee, O Jerusalem, let my right hand forget, let my tongue cleave to the roof of my mouth if I remember thee not, if I prefer not Jerusalem above my chief joy.16 What is meant by 'my chief joy'?17 R. Isaac said: This is symbolised by the burnt ashes18 which we place on the head of a bridegroom. R. Papa asked Abaye: Where should they be placed? [He replied]: Just where the phylactery is worn ,as it says, To appoint unto them that mourn in Zion, to give then a garland [pe'er] for ashes [epher].19 Whoever mourns for Zion will be privileged to behold her joy, as it says, Rejoice ye with Jerusalem etc.20 It has been taught: R. Ishmael ben Elisha said: Since the day of the destruction of the Temple we should by rights bind ourselves not to eat meat nor drink wine, only we do not lay a hardship on the community unless the majority can endure it. And from the day that a Government has come into power which issues cruel decrees against us and forbids to us the observance of the Torah and the precepts21 and does not allow us to enter into the 'week of the son'22 (according to another version, 'the salvation of the son'),23 we ought by rights to bind ourselves not to marry and beget children, and the seed of Abraham our father would come to an end of itself. However, let Israel go their way: it is better that they should err in ignorance than presumptuously.24 [____________________
(1) Zeph. II, 1. The English version translates, 'Gather yourselves together, yea, gather together.' Resh Lakish, however, derives it from the word kash, stubble, and translates, 'Remove the stubble from between your own eyes, and afterwards remove it from others.'
(2) I.e., has he not tacitly abandoned his right to the intervening space?
(3) Whom the law follows in this matter, so that, as usually in a dispute between R. Johanan and Resh Lakish, the law follows the former.
(4) In the original width of the street.
(5) Since the destruction of the Temple.
(6) Which seems to show that where a right has been acquired by prescription, if it once lapses it cannot he resumed.
(7) From where, as here, the question is only one of causing damage.
(8) Because this makes the hue less bright.
(9) טרכסיד, which is a valuable preservative for the wall. [For the various suggestions as to the derivation of the word. V. Krauss. op. cit. I, 299.]
(10) In 70 C.E.
(11) On the Feast of Tabernacles. v. Suk. IV.
(12) This is taken to mean: 'You have laid on yourselves an adjuration (to bring the tithe).'
(13) Malachi, III, 9. It is assumed that the adjuration would not have been effective unless the whole nation had taken part in it; which is taken to show that we do not impose a hardship unless we are sure that the majority can stand it.
(14) V. supra p. 219, no. 5.
(15) Which was usually removed as a mark of elegance.
(16) Ps. CXXXVII, 5.6.
(17) Lit., 'Head of my joy'.
(18) Lit., 'ashes from the hearth'.
(19) Isa. LXI, 3. The word pe'er is supposed to refer to the phylacteries on the basis of the verse, Bind thy headtire (pe'erka) upon thee. (Ezek. XXIV, 17.)
(20) Isa. LXI, 10.
(21) The reference is to the persecution instituted by the Emperor Hadrian after the revolt of Bar Kochba, 135 C.E.
(22) שבוע הבן I.e., the rite of circumcision. [So Rashb. and Rashi, Sanh. 32b. This term is said to have been adopted by the Jews as a disguise during the Hadrianic persecutions when the rite was prohibited in order to remove any suspicion that they were engaged in a religious observance. Others explain the term as denoting the seven days festivities that followed the birth of a child. V. Bergmann. J., M.G.W.J. 1932, 465ff;and cf. Krauss, op. cit. II, 438. The expression 'the week of the daughter', שבוע הבת also occurs in Nahmanides' Torath Ha'adam, 35b. This is to he taken as a proof against the usual identification of 'the week of the son' with 'the rite of circumcision', v. Mann J. H.U.C. 1924, p. 325,n.3.]
(23) [ישוע הבן 'The redemption of the son' (Rashi): or, 'The birth of a son' (R. Tam); Tosaf. B.K.80a, s.v. לבי]
(24) And therefore we do not tell them this, since in any case they would go on marrying and begetting children.MISHNAH. IF A MAN SELLS A HOUSE1 [WITHOUT FURTHER SPECIFICATION], THE YAZIA'2 IS NOT INCLUDED WITH IT,3 EVEN THOUGH IT OPENS INTO THE HOUSE, NOR IS AN INSIDE ROOM4 [WHICH IS ENTERED FROM IT]. NOR THE ROOF, SO LONG AS IT HAS A PARAPET TEN HAND BREADTHS HIGH.5 R. JUDAH SAYS THAT IF IT HAS [ANYTHING OF] THE SHAPE OF A DOOR, EVEN THOUGH THE PARAPET IS NOT TEN HANDBREADTHS HIGH IT IS NOT SOLO [WITH THE HOUSE].6
GEMARA. What is meant by the word yazia'? - Here7 it was translated as apsa.8 R. Joseph said: It means a verandah with a semiopen side.9 For one who holds that a closed-in verandah is not sold [with the room]. there is no question that an open one is not. But the one who says [that the verandah excluded here is] the open one would nevertheless include the closed-in one.
R. Joseph learned: Three names are found for this structure in the Scriptures10 - yazia', zela', ta. Yazia1 , as it is written, The nethermost storey [yazia'] was five cubits broad;11 zela', as it is written, And the side chambers [zela'oth] were in three stories, one over another and thirty in order;12 ta, as it is written, And every lodge [ta] was one reed13 long and one reed broad, and the space between the lodges was five cubits.14 Or if you like I can derive it [the fact that a verandah is called ta] from here: 'The wall of the Sanctuary was six cubits and the ta15 was six and the wall of the ta was six.'16
Mar Zutra said: [A verandah is not sold with a room] only if it has an area of four [square] cubits.17 Said Rabina to Mar Zutra: On your view that it must be four [square] cubits, what about the cistern, of which we have learnt, that the cistern and the well are not included [in the sale of the house] even if he [the seller] inserts in the deed of sale the words 'to the height and to the depth'?18 [Are we to say that] there likewise [the rule] applies only if they have an area of four cubits, but otherwise not? - [He replied]: How can you compare the two? The cistern and the well are used for quite different purposes from the house,19 but here both [the verandah and the house] are used for the same purposes. Hence if it is four cubits [square], it is reckoned as a separate structure, but if less not.
NOR AN INSIDE ROOM WHICH IS ENTERED FROM IT. If a verandah is not sold [along with the living room], do we need to be told that an inside room is not?20
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(1) Heb. bayith, which may mean either an apartment or a whole house.
(2) Explained in the Gemara.
(3) In spite of the fact that it is for practical purposes little more than an appendage of the room.
(4) Attached to the back of the house.
(5) Since this makes it into a separate structure.
(6) Since this also makes it a separate structure.
(7) In Babylon.
(8) A closed-in verandah; a small, low structure at the side or back of a house.
(9) E.g., with lattices, like our verandahs. This has a more independent value than the closed-in one.
(10) Viz., in the Scriptural account of the Temple of Solomon in I Kings, and of the Temple of the future in Ezekiel.
(11) I Kings VI, 6.
(12) Ezek. XLI, 6.
(13) =6 cubits. The reference here is to the lodges of the middle storey. V. Ezek. XLI, 7.
(14) Ezek. XL, 7.
(15) Of the middle storey.
(16) Mid. IV, 4. This shows that the ta was something attached to the wall.
(17) Because otherwise it is not reckoned a separate structure.
(18) V. infra 64a.
(19) And therefore it is reasonable that they should not be included in the house.
(20) Seeing that it is used for quite distinct purposes from the living room, e.g.. as a box room.- It was necessary to state the rule to show that [this is the case] even if the seller drew the boundaries [in the deed of sale] outside [the inner room]. This is based on the ruling laid down by R. Nahman in the name of Rabbah b. Abbuha. For R. Nahman said in the name of Rabbah b. Abbuha that if a man sells another an apartment1 in a large tenement-house, even if he draws the boundaries outside [the whole tenement-house] we say that he only drew the boundaries wide.2 How are we to understand this rule? If the apartment is called an apartment and the tenement a tenement, then it is self-evident:3 he is selling him an apartment, not a tenement? If again the tenement also is called an apartment, then he sells the whole to him [does he not]? - The rule is required for the case where most people call the apartment an apartment and the tenement a tenement, but some call the tenement also an apartment. I might think that in this case [if he draws the boundaries wide] he sells him the whole. We are therefore told that since he might have inserted [in the deed of sale the words], 'And I have not reserved for myself anything from this transfer,'4 and did not insert them, we assume that he did reserve something.5
R. Nahman also said in the name of Rabbah b. Abbuha: If a man sells to another a field in a big stretch of fields, even though he draw the outer boundaries [right round the whole stretch, he only sells the field, because] we say that he draws the boundaries wide. How are we to understand this? If the field is called a field and the stretch a stretch, the proposition is self-evident; he is selling him a field, not a stretch. If again the stretch is also called field, then the whole is sold to him [is it not]? - The rule is necessary for the case where some call the stretch a stretch and some call it a field. You might think that in this case he sells him the whole. Therefore we are told that since he might have inserted [in the deed of sale the words]. 'I have not reserved for myself anything from this transfer,' and did not insert them, we are to assume that he did reserve something.6 And both these rulings [about the house and the field] required to be stated. For if had only the one about the house, I might say that the reason [why the tenement is not sold with the apartment] is because they are used for different purposes,7 but in the case of the stretch of fields and the field where the whole [stretch] is used for the same purpose I might say that the whole is sold. And if l had only the rule about the stretch of fields, I might think that the reason [why it is not all sold] is because it is difficult to mark off one field [in the middle of a stretch], but in the case of the apartment, where he could easily have marked it off and did not do so, I might think that he has sold him the whole. Hence both are necessary.
What authority does R. Mari the son of the daughter of Samuel b. Shilath8 follow in the statement he made in the name of Abaye: If a man sells property to another, he should insert in the deed of sale the words, 'I have not reserved from this transfer for myself anything.' The authority is the dictum enunciated by R. Nahman in the name of Rabbah b. Abbuha.9
A certain man said to another: I will sell you the land of Hiyya's. There were two pieces of land which were called Hiyya's. R. Ashi said: He sold him one piece of land, not two.10 If, however, a man says to another, 'I will sell you some lands,'11 the minimum that can be called 'lands' is two. If he says 'all the lands', [this includes] all his landed property except gardens and orchards. If he says 'fields',12 this includes gardens and orchards also, but not houses and slaves.
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(1) V. p. 247. n. 1.
(2) And his intention is to sell only the apartment.
(3) And the rule need not have been stated.
(4) This being the regular formula of a deed of sale. V. infra.
(5) Viz., the tenement.
(6) Viz., the rest of the stretch.
(7) The word birah (tenement house) was applied specifically to the large hall in it into which the separate apartments opened, and which was used for sitting and walking about in and not for residence.
(8) [Delete 'b. Shilath', v. D.S. a.l. and cf. infra p. 357, n. 15.]
(9) That boundaries may be drawn wide; and it is to prevent the seller from entering such a place that the insertion of this formula in the deed of sale was prescribed by R. Mari.
(10) And the purchaser must take whichever one the seller chooses.
(11) [So Ms. M; V. D.S. a.l.]
(12) Zihara, a name which probably included all cultivable ground.If he says 'my property',1 this would include houses and slaves also.
If the seller draws one of two parallel boundaries shorter than the other, Rab says that the purchaser obtains only the width of the shorter line.2 R. Kahana and R. Assi said to Rab: Should he not obtain as much as is bounded by the oblique line?3 - Rab made no reply.') Rab, however, had [previously] admitted that if [the field in question] is bounded by those of Reuben and Simeon on one side, and by those of Levi and Judah on the other, since [if he desired to transfer only half the field] he should have written either '[the boundaries are the field] of Reuben [on one side and] opposite [to it the field of] Levi', or else '[the field] of Simeon [on one side and] opposite [to it the field of] Judah', and he did not do so, he meant to transfer all within the oblique line [from the end of Simeon's field to the end of Levi's].4
If the field is bounded by fields of Reuben on the east and west and by fields of Simeon on the north and south, he must write, 'the field is bounded by fields of Reuben on two sides and by fields of Simeon on two sides.'5
The question was raised: If he merely marks the corners,6 how do we decide? If he draws the boundaries like a gam,7 how do we decide?8
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(1) Or, 'my belongings'.
(2) Rab assumes that the field sold is to be a parallelogram, v. fig. I.
(3) Lit., 'head of an ox': i.e., by a line drawn from the end of the shorter to the end of the longer boundary, v. fig. 2. (9) Signifying assent. v. Tosaf.
(4) The case dealt with here apparently is one in which the field is bounded on the north by those of Reuben (R) and Simeon (S), by each to half its length, and on the south by those of Levi (L) and Judah (J), by each to half its length, and the seller writes, 'the field that is bounded by those of Reuben and Simeon on the north and by that of Levi on the south', making no mention of Judah. (Fig. 3) The reading, however, is somewhat uncertain, and Tosaf. gives another explanation.
(5) And not simply, 'it lies between the fields of Reuben and Simeon', as in that case half the field would suffice, v. fig. 4:
(6) Suppose the field is bounded by a number of other owners' fields, some abutting on the corners, does he sell the whole or only two diagonal strips from corner to corner, v. fig. 5.
(7) Marking a little of each side, in the shape of a Greek Gamma, thus: I' [Gandz, S., Proceedings of the American Academy of Jewish Research, 1930-32, pp. 37ff., connects the Hebrew term Gam with the Gnomon with the carpenter's square.] v. fig. 6.
(8) Is this sufficient for the whole field, or does it convey only a diagonal strip?If he mentions one and skips one,1 how do we decide? - These questions must stand over.
If the seller defines the first, second and third boundaries, but not the fourth, Rab says that the purchaser acquires the whole of the field with the exception of the fourth boundary,2 and Samuel said that he acquires the fourth boundary also. R. Assi, however, said that he acquires only one furrow alongside of the whole.3 He [so far] agreed with Rab [as to hold] that he reserved something, but [he further held] that since he reserved the boundary he reserved the whole field,4
Raba said: The law is that he acquires the whole field with the exception of the fourth boundary.5 And even this is the case only if the fourth boundary does not lie within the adjoining two,6 but if it does so lie,7 the purchaser acquires it. And even if it does not lie within the adjoining two, [he fails to acquire it] only if there is on it a clump of date trees, or it has an area of nine kabs,8 but if there is no clump of date trees on it and it does not contain an area of nine kabs, he does acquire it.9 From this it can be inferred that if it lies between the adjoining boundaries, then even if there is a clump of date trees on it and it has an area of nine kabs, the purchaser acquires it.10
According to another version, Raba said that the law is that the purchaser acquires the whole, including the fourth boundary. This is the case, however, only if it lies between the two adjoining boundaries, If, however, it does not so lie, he does not acquire it. And even where it does so lie, he acquires it only if there is not on it a clump of date trees, or it has not an area of nine kabs,11 but if there is on It a clump of date trees, or it has an area of nine kabs, he does not acquire it . From this we infer that when it does not lie between the two adjoining boundaries, even though there is no clump of date trees on it and it has not an area of nine kabs, he does not acquire it.12
From either version of Raba's statement we learn that the seller does not reserve any part in the field itself.13 We also learn that where the fourth boundary lies between the two adjoining ones and there is no clump of date trees on it, or it has not an area of nine kabs, the purchaser acquires it [even though it is not specified], and that if it does not so lie and there is on it a clump of date trees or it has an area of nine kabs, he does not acquire it.14 If it lies between the adjoining boundaries and there is a [clump of date trees] on it [etc.],15 or if it does not so lie and there is [no clump] on it [etc.],15 according to one version the rule is one way and according to the other version the rule is the other way, and so we leave the judges to use their own discretion.16
Rabbah said: [If a man who owns half a field17 says to another], I sell you the half which I have in the land, [he sells him] half [of the whole]. [If he says, I sell you] half of the land that I have,18 [he sells him] a quarter [of the whole]. Said Abaye to him: What difference does it make whether he says one thing or the other? Rabbah made no reply. Abaye [subsequently] said: I thought that, because he made no reply, he accepted my view, but this was not so, for I saw [later] some documents that were issued from the master's court; where it was written, 'the half that I have in the land', [the transaction was for] half, and where it was written, 'the half of the land that I have', [the transaction was for] a quarter. Rabbah further said: [If the seller writes in the deed,] [The boundary of the land is] the land from which half has been cut off,19 [he sells] half. If he writes, [The boundary of the land is] that from which a piece is cut off, [he only sells an area of] nine kabs.20 Said Abaye to him: What difference does it make whether he says one way or the other? Rabbah made no reply. The conclusion was drawn that in either case [the proper rule was that he sold him] half,
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(1) If there are two separate fields on each side, and he mentions one and skips one, does he sell the whole or only the sections opposite the fields he specifies? v. fig. 7.
(2) I.e., one furrow alongside of it.
(3) Right round the other three boundaries.
(4) With the exception of the furrow round,
(5) As laid down by Rab.
(6) Lit., 'is not swallowed', v, fig. 8.
(7) v. fig. 9.
(8) I.e., sufficient for the sowing of nine kabs of seed. In these cases it counts as a separate field.
(9) Because it goes with the field.
(10) In other words, there must be two weaknesses in his claim to disqualify it, (a) that the fourth boundary lies outside the adjoining two, (b) that there is a clump etc.
(11) Because here also there is only one weakness in his claim, not two.
(12) In other words, there must be two things in his favour to make his claim good.
(13) Where he defines all the boundaries except one, the difference between the two versions being only in regard to the fourth boundary.
(14) Being in this case practically a separate field.
(15) [So Yad Ramah.]
(16) According to what they consider to have been the intention of the seller. In most analogous cases, the property in dispute either remains with the possessor or is to be divided.
(17) Being joint owner with someone else.
(18) I.e., half of his share.
(19) I.e., part of a field is sold and the boundary is formed by the rest of it.
(20) The minimum which constitutes a field.This, however, is not so, because R. Yemar b. Shelemiah has said: Abaye has himself explained to me that whether he writes, 'The boundary [of the field] is the field from which half has been cut off,' or 'The boundary [of the field] is the field from which a piece is cut off,' if he adds the words, 'these are its boundaries' , [then he sells him] half,1 and if he does not add the words 'these are its boundaries', [then he sells him] nine kabs.2
We take it for granted that if a man says, Let so-and-so share3 my property, [he is to receive] a half. If he says, Give so-and-so a share in my property, what is to be done?4 - Rabina b. Kisi said, Come and hear: it has been taught: If a man says, Give so-and-so a share in a cistern, Symmachus5 says that he is to receive not less than a quarter.6 [If the man says], Give him a share [in the cistern] for his pail,7 he is to receive not less than an eighth. [If he says, Give him a share] for his pot,8 he is to receive not less than a twelfth. [If he says, Give him a share] for his drinking cup,9 he is to receive not less than a sixteenth.
Our Rabbis taught: If a Levite sells a field to any [ordinary] Israelite10 with the stipulation that the first tithe11 therefrom is to be given to him,12 the first tithe from it must be given to him. If he stipulated that it was to be given to him and to his sons and he then died, it is to be given to his sons. If the stipulation is, 'as long as this field is in your possession,' and he [the purchaser] sells it and then buys it again, the Levite has no claim on him. How can [all] this be, seeing that a man cannot transfer to another possession of something that does not yet exist?13 - Since the Levite stipulated that the first tithe should be given to him, he in effect reserved to himself the area of the tithe.14 Resh Lakish said: This shows that if a man sells an apartment to another with the stipulation that the top layer15 is still to belong to him, the top layer belongs to him.
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(1) The superfluous words being meant to place the purchaser in the most favourable position possible.
(2) The deed being interpreted in favour of the seller,
(3) Heb, yahalok, lit., 'divide'.
(4) There being various possibilities, e.g., that he should receive half, or as much as the Beth din think fitting, or an equal portion with the sons of the donor.
(5) Who always went on the principle that 'money of which the ownership is in doubt should be divided (between the claimants)'.
(6) The share may mean either a half or a mere fraction. Being in doubt, therefore, we strike the balance.
(7) I.e,, for watering his cattle and not his field, for which at the utmost only half the cistern is required. Hence the gift is at the utmost only half of a half, and we strike the balance between this and a fraction.
(8) For purposes of cooking, for which only a third of the cistern is required.
(9) For which only a quarter of the cistern is required.
(10) I.e., one who is neither priest nor Levite,
(11) According to the Rabbinical interpretation of Deut. XIV, 22-29, three tithes had to be taken from agricultural produce, the 'first' which had to be given to the Levite, the 'second' which had to be eaten in Jerusalem, and the 'third' which had to be given (once in three years) to the poor.
(12) In preference to any other Levite.
(13) Lit., 'has not yet come into the world'. How then could the man who bought the field from the Levite make him the possessor of the tithe before even the seed was sown?
(14) Because otherwise the stipulation would be an idle one, and we must suppose that the Levite meant something with it.
(15) דיוטא * Gr. **; apparently this refers to the top layer of the parapet surrounding the roof, and the expression is therefore equivalent to 'a roof with a parapet', or 'a roof chamber'. [So Rashb. R. Gersh. and Yad Ramah define it simply as a low-ceilinged upper storey. V. however Krauss, op. cit. I, 23, and Tosaf. 64a, s.v. ואי].For what purpose is the new rule laid down by Resh Lakish?1 - [In order to tell us] that if the vendor desires to let out projecting spars from the roof, he is at liberty to do so.2 R. Papa says: [In order to tell us] that if he desires to build an upper chamber over the apartment, he is at liberty to do so.3 Accepting R. Zebid's view, we understand why Resh Lakish used the expression 'this shows'.4 But on the view of R. Papa, why should he have said, 'this shows'?5 - This is really a difficulty.
R. Dimi of Nehardea said: If a man sells an apartment to another,6 even though he inserts in the deed of sale the words, '[I sell you] the depth and the height',7 he must further insert the words, 'Acquire for thyself possession from the depth of the earth to the height of heaven,' because the space below and above is not transferred automatically.8 Hence the words 'depth and height' avail to transfer the space below and above, while the words 'from the depth of the earth to the height of heaven' avail to transfer a well, a cistern and cavities.
Shall we say [that the following Mishnah] supports R. Dimi: The vendor does not transfer the well and the cistern even though he inserts the words 'depth and height'?9 Now if you should assume that the space below and above is transferred automatically, then the insertion of the words 'depth and height' should avail to transfer well, cistern and cavities [should they not]? - [We suppose the Mishnah to refer to the case] where these words were not inserted.10 But the Mishnah distinctly says, 'although he inserts the words [depth and height']? - We must explain the Mishnah thus: Even if these words are not actually inserted they are regarded as being inserted for the purpose of transferring the space below and above; and as regards a well and a cistern, if the words 'depth and height' are inserted, these are transferred, but otherwise not.11
Come and hear: 12 NOR THE ROOF SO LONG AS IT HAS A PARAPET TEN HANDBREADTHS HIGH.
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(1) We already know this from the Mishnah which says that if a man sells a house, he does not sell with it the roof. V. supra 61a.
(2) I.e., even if he parts with the courtyard, he still retains the right to make the same use of the roof as when the courtyard below belonged to him. This right, however, is retained by him only in virtue of his stipulation which otherwise would have been an idle one.
(3) This is explained by the commentators to mean that if the parapet (or the upper storey) falls in, he is at liberty to rebuild it. [R. Gershom's explanation that he may build an upper chamber over the diaita, accords, however, better with our text. cf. n. 4.]
(4) Because the act of the vendor here in reserving to himself, in virtue of his stipulation, a part of the space over the courtyard is analogous to the act of the Levite in reserving to himself a part of the field.
(5) Because there is no special analogy between reserving part of the field which has been sold and reserving the right to rebuild the roof which has not been included in the sale, and if Resh Lakish had meant the latter, he should have stated it independently and not derived it from the former.
(6) With the intention of transferring to him at the same time the well or cistern in the courtyard.
(7) I.e., all the space below and above.
(8) I.e., along with the house itself without specific mention. For the exact significance of 'depth and height' v. infra.
(9) Infra 64a.
(10) And if they are, they avail to effect the transfer of well and cistern.
(11) And we do not require the words, 'from the depth of the earth to the height of heaven'.
(12) This is a further argument in support of R. Dimi's view,Now if you assume that the space below and above is transferred automatically, what difference does it make if the parapet is ten handbreadths high?1 - Since the parapet is ten handbreadths high the roof is reckoned as a separate structure.2
Rabina said to R. Ashi: Come and hear:3 Resh Lakish said: This shows that if a man sells an apartment to another with the stipulation that the top layer still belongs to him, the top layer does still belong to him; and we asked what was the purpose of the new rule laid down by Resh Lakish, and R. Zebid said: [In order to tell us] that if the vendor desires to let out projecting spars from the roof he may do so, and R. Papa said: [In order to tell us] that if he desires to build an upper chamber over the apartment he may do so. Now if you assume that the top layer is not transferred automatically, what does he gain by his stipulation?4 - What he gains by the stipulation is the right to rebuild it if it falls in.5
MISHNAH. [THE VENDOR OF A HOUSE DOES NOT SELL THEREWITH] A WELL OR A CISTERN,6 EVEN THOUGH HE INSERTS [IN THE DEED THE WORDS] 'INCLUDING THE DEPTH AND THE HEIGHT'.7 HE MUST, HOWEVER, BUY HIMSELF, [IF REQUIRED], THE RIGHT OF WAY [TO THE WELL OR CISTERN]. THIS IS THE RULING OF R. AKIBA, THE SAGES, HOWEVER, SAY THAT HE NEED NOT BUY THE RIGHT OF WAY. R. AKIBA [ON HIS SIDE] AGREES THAT IF THE VENDOR INSERTS [THE WORDS] EXCEPT THESE',8 HE NEED NOT BUY HIMSELF A RIGHT OF WAY. IF THE OWNER OF THE HOUSE SELLS THESE TO ANOTHER R. AKIBA SAYS THAT THE PURCHASER NEED NOT BUY A RIGHT OF WAY TO THEM, BUT THE SAGES SAY THAT HE MUST BUY IT.
GEMARA. Rabina9 as he sat [and studied this section] asked: Is not WELL10 identical with CISTERN?11 Said Raba Tosfa'ah to Rabina: Come and hear: It has been taught: Both 'well' and 'cistern' are excavations in the soil, only a 'well' is merely dug out,12 whereas a 'cistern' is faced with stone.13 R. Ashi [also] as he sat [and studied this section] asked: Is not WELL identical with CISTERN? Said Mar Kashisha the son of R. Hisda to R. Ashi: Come and hear: It was been taught: Both 'well' and 'cistern' are excavations in the soil, only a 'well' is merely dug out, whereas a 'cistern' is faced with stone.
HE MUST BUY HIMSELF THE RIGHT OF WAY. THIS IS THE RULING OF R. AKIBA. THE SAGES, HOWEVER, SAY THAT HE NEED NOT. [We may assume,] may we not, that the point at issue between them is this,
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(1) That is to say, why should a roof with a parapet be different from a roof without a parapet (which is sold with the house), unless for the fact that the purchaser does not acquire the height automatically with the house. So Rashi. V, however Tosaf., s.v. ואי.
(2) And therefore is not sold automatically with the house.
(3) An argument against R. Dimi, from the ruling of R. Papa.
(4) Since even without this the vendor would still retain possession of the roof.
(5) This right not being conveyed by the bare transfer, which relates to 'this' layer only. Hence if he desires to transfer the roof completely, he must insert the words 'depth and height'.
(6) The difference between these terms is explained in the Gemara.
(7) I.e., the space below and above.
(8) Which, strictly speaking, are superfluous, as the well and cistern are not automatically transferred with the house.
(9) [Rabina II b. Huna, nephew of Rabina I, v. Kaplan, J., Redaction of the Babylonian Talmud, 144.]
(10) בור.
(11) דות.
(12) Of hard soil which does not fall in.
(13) Because the soil is soft.that in the view of R. Akiba the vendor interprets the terms of sale liberally1 and in the view of the Rabbis2 he interprets them strictly?3 And further that, wherever we find it stated that 'R. Akiba decides according to his usual maxim that the vendor interprets the terms of sale liberally,'4 it is in the strength of this passage [that we assign this maxim to him]? - Is this assumption justified? perhaps [the reason for their dispute is this]; R. Akiba holds that a man does not like others to walk over ground which he has paid for, and the Rabbis hold that a man does not care to receive money on condition that he has to fly through the air [to get to where he wants].5 Can we then [base this assumption] on the next clause: IF HE SELLS THESE TO ANOTHER, R. AKIBA SAYS THAT THE PURCHASER NEED NOT BUY A RIGHT OF WAY TO THEM, BUT THE SAGES SAY THAT HE MUST BUY IT?6 - No, for perhaps the reason of their difference is this, that according to R. Akiba's view we have to consult the wishes of the purchaser, and according to the view of the Rabbis we have to consult the wishes of the vendor.7
Can we [base it] on this: '[The vendor does not sell with the field] either a pit or a wine-press or a dovecote, whether they are In use or not in use,8 and he must buy a right of way [to them]. This is the ruling of R. Akiba, but the Sages say that he need not buy a right of way [to them]' -9 Now why10 should it repeat here [the rulings of R. Akiba and the Sages]? Surely it must be to show us that [in general] R. Akiba holds that the vendor interprets the terms of sale liberally and the Rabbis that he interprets them strictly?11 - No. Perhaps the Mishnah [desires to] tell us by this that [the difference between R. Akiba and the Sages is as stated above] both in regard to a house and a field, both being necessary. For if it had stated [the difference only] in the case of a house, [I might have thought that there R. Akiba says that the vendor has to buy a right of way] because the purchaser desires privacy,12 but in the case of a field [where this reason does not apply] I might say he need not. And if the difference had been stated only in regard to a field, I might have thought that there [R. Akiba says that the vendor has to buy a right of way] because [the purchaser objects to his land being] trodden down,13 but in the case of a house [where this reason does not apply I might say] he need not. May we then [base the assumption] on the succeeding clause: 'If he sells them [the pit etc. in a field] to another, R. Akiba says that the purchaser does not need to buy a right of way, while the Sages say that he must.' Now why is [their difference stated] again? It is exactly the same here as in the previous case.14 We must therefore say that this shows that in the view of R. Akiba the vendor interprets the terms of sale liberally, and in the view of the Rabbis he interprets them strictly.15
It has been stated: R. Huna said in the name of Rab:
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(1) Lit., 'sells with a bounteous eye', and therefore reserves to himself nothing.
(2) I.e., the Sages.
(3) Lit., 'sells with an evil eye', and therefore reserves to himself a right of way.
(4) V. supra 37a; infra 71a.
(5) But in the case of trees and other things to which these reasons do not apply, we cannot assume that these are the reasons of R. Akiba and the Rabbis.
(6) Here the reasons given above do not apply.
(7) That is to say, we may suppose R. Akiba to hold that in this case the purchaser would not give his money if he had to fly through the air, and the Rabbis to hold that the seller would not take money if his ground is to be walked over; but we cannot infer anything about a 'liberal' or 'illiberal' spirit.
(8) Lit., 'desolate or inhabited'.
(9) ]infra 71a.
(10) If the reasons are as given above, because of the objections to treading or flying.
(11) As otherwise the repetition of the rule would be entirely superfluous.
(12) Hence his objection to treading.
(13) And so rendered less productive.
(14) Viz., where these things are bought and sold with a house.
(15) As otherwise the statement would be entirely superfluous.The halachah follows the ruling of the Sages. R. Jeremiah b. Abba, however, said in the name of Samuel that the halachah follows the ruling of R. Akiba. Said R. Jeremiah b. Abba to R. Huna: Did I not frequently say in the presence of Rab that the halachah follows the ruling of R. Akiba, and he did not say a word to me? Said R. Huna to him: How did you report his ruling? - He said to him: I reported them [with the names] reversed.1 It is for that reason [said R. Huna] that he did not say anything to you.
Rabina said to R. Ashi: May we say that they [Rab and Samuel here] are in accord with their respective views [as expressed in the following passage]: R. Nahman said in the name of Samuel, If brothers divide an inheritance, neither has a right of way against the other nor the right of 'ladders', nor the right of 'windows', nor the right of 'watercourses', and take good note of these rulings, since they are definite.2 Rab, however, said that they have [these rights].3 [R. Ashi answered:] Both statements are necessary.4 For if I had only the latter, I would say that Rab's reason [for allowing the right of way] is because one brother can say to the other, I want to live on this land as my father lived: and in proof that this is a valid plea in the mouth of an heir, the Scripture says, In the place of thy fathers shall be thy sons.5 In the other case, however, I might think that Rab agrees with Samuel. If again I had only the former statement, I might think that only in that case did Samuel say [that the vendor interprets the terms of sale liberally], but here he agrees with Rab. Hence both statements are necessary.
R. Nahman said to R. Huna: Does the law follow our6 opinion or yours? - He replied: The law follows your view, since you have continual access to the gate of the Exilarch, where the judges are in session.7
It has been stated: If there are two apartments one within the other, and both are sold or given away [at the same time to two different persons], they have no right of way against one another.8 Still less have they if the outer one is given and the inner one is sold.9 If the outer one is sold and the inner one given, [the students] wanted to infer from this that there is no right of way from one to the other,10 but this is not correct. For have we not learnt:11 'This12 applies only to a sale, but if the owner makes a gift, he includes all these things'? This shows that a donor is presumed to make a gift in a liberal spirit.13 So here, the donor gives in a liberal spirit.
MISHNAH. IF A MAN SELLS A HOUSE, HE [IPSO FACTO] SELLS [WITH IT] THE DOOR, BUT NOT THE KEY;14 HE SELLS [WITH IT] A MORTAR15 FIXED [IN THE GROUND] BUT NOT A MOVABLE ONE; HE SELLS [WITH IT] THE CASING OF A HANDMILL BUT NOT THE SIEVE,16 AND NOT A STOVE OR AN OVEN.17 IF HE SAYS TO THE PURCHASER, [I SELL] THE HOUSE AND ALL ITS CONTENTS,
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(1) These, of course, were not the actual words of R. Jeremiah. Perhaps we should read, אמר ליה איפכא [so MS. M. v. D. S.], 'he gave him the rulings in the reverse form', making R. Akiba say that the vendor interprets the terms of sale strictly and the Sages that he interprets them liberally.
(2) V. supra 7a and notes.
(3) Here also we see that according to Rab the terms of the division are interpreted strictly by each party (i.e. to his own advantage), and according to Samuel liberally (i.e. to the other's advantage).
(4) Viz., the statements of the dispute between Rab and Samuel both in regard to the purchaser and vendor and in regard to the brothers, and we cannot say that in one case they are merely applying a principle underlying their decision in the other.
(5) Ps. XLV, 17.
(6) His own and that of Samuel, who was his teacher.
(7) R. Nahman was a son-in-law of the Exilarch.
(8) I.e., through the outer room to the inner, because both parties are on an exactly equal footing.
(9) Because we presume the gift to have been made in a more liberal spirit than the sale.
(10) Because presumably the owner does not favour one above the other to this extent.
(11) Infra 71a, in connection with the dispute between R. Akiba and the Sages about the right of way.
(12) That according to the Rabbis a right of way is not included.
(13) Even on the view of the Rabbis, and still more on that of R. Akiba. (10) Even at the expense of the purchaser, and therefore the recipient of the inner room has a right of way through the outer.
(14) Lit., 'opener': a bolt which would fit any door, but which usually was left in its socket.
(15) For pounding spices etc.
(16) Cf. supra p. 103.
(17) These too were movable, but the stove was somewhat larger and used for baking bread, V.l. 'he sells (with it) a stove and oven,' these being regarded as fixtures. The principle is therefore that the 'house' includes fixtures but not movable things.ALL THESE THINGS ARE INCLUDED IN THE SALE.1
GEMARA. Are we to say that the Mishnah is not in agreement with R. Meir, for if it were according to R. Meir, surely he has laid down that 'if a man sells a vineyard, he [automatically] sells with it the implements of the vineyard'?2 - You may in fact say that it concurs with R. Meir, for there he was speaking of things which are part and parcel of the vineyard,3 but here [the Mishnah speaks of] things which are not part and parcel of the house. But does not the Mishnah mention a key side by side with a door, [as much as to say], Just as a door is part and parcel of a house, so a key is part and parcel of the house4 [and yet it is not sold with the house]?5 - The more tenable opinion therefore is that the Mishnah does not agree with R. Meir.
Our Rabbis taught: If a man sells a house, he ipso facto sells the door, the cross-bar, and the lock, but not the key; the mortar that has been hollowed [out of stone], but not one that has been fixed; the casing of the handmill but not the sieve; and not the oven, the stove, or the handmill. R. Eliezer, however, says that everything attached to the ground6 is in the same category as the ground. If the vendor uses the formula, 'the house and all its contents', all these things are sold with. In either case, however, he does not sell the well, the cistern, or the verandah.
Our Rabbis taught: 'If a man hollows out a pipe and then fixes it, water from it makes a mikweh7 unfit for use. If, however, he first fixes it and then hollows it, it does not render the mikweh unfit for use.'8 To whom [are we to ascribe this dictum]? For it cannot be either R. Eliezer or the Rabbis! - Which [statement of] R. Eliezer [have you in mind]?9 Shall I say, the one about the house?10 possibly the reason [why he says there that fixtures are in the same category as the ground] is because he holds that the vendor interprets the terms of sale liberally, whereas the Rabbis hold that he interprets them strictly.11 Is it then the statement about the beehive, as we have learnt: 'R. Eliezer says that a beehive12 is on the same footing as the soil; it may serve as a surety for a prosbul,13
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(1) Because although movable they more or less belong to the house and are not usually removed from it.
(2) E.g., the poles (infra 78b). Hence we should expect R. Meir to include in the house the movable mortar and the key.
(3) Lit,, 'fixed'. I.e., things which though in themselves movable, are in practice never taken from the vineyard.
(4) The key spoken of by the Mishnah must be one which is usually left in the door, as otherwise it would have said, 'The sale includes a key which is left in the door, but not one which is carried about', and we should have understood a fortiori that a door is sold with the house.
(5) This shows that according to the Mishnah even things which are part and parcel of the house are not sold with it unless the formula 'it and all its contents' is used.
(6) Including, that is, the fixed mortar.
(7) A ritual bath. V. Glos.
(8) The rule is that water in the mikweh must not be 'drawn' there by artificial means, i.e., through the instrumentality of a 'vessel', but must flow there naturally. According to this dictum, the fixing of the pipe in the soil does not make it part of the soil, and it still remains a 'vessel'. On the other hand, the hollowing of the wood or stone after it has been fixed does not make it a 'vessel', but it is regarded as being merely a trench in the ground.
(9) I.e., with which statement of his is the one just adduced in conflict?
(10) In the Baraitha quoted above: 'R. Eliezer says that everything attached to the ground is in the same category as the ground.'
(11) Hence no conclusion is to be drawn from that Baraitha as to the opinions of R. Eliezer and the Rabbis with regard to the mikweh.
(12) Attached to the ground by mud or clay.
(13) V. infra p. 324, n. 7. Glos.it is not liable to uncleanness where it is;1 and if one takes honey from it on Sabbath, he becomes liable for a sin-offering.2 The Sages, however, say that it is not on the same footing as the soil, that it cannot serve as a surety for a prosbul, that it can become unclean where it is, and that one who takes honey from it on Sabbath has not to bring a sin-offering'?3 - [It is not this statement either], for there [R. Eliezer's reason is] as reported by R. Eleazar, that we find written in the Scripture, And he dipped it in the honeycomb;4 [from which he reasoned that,] just as one who plucks anything from a wood on Sabbath becomes liable for a sin-offering, so one who takes honey from a comb on Sabbath becomes liable for a sin offering.5 It must be then the statement of R. Eliezer about the shelf, as we have learnt: 'If a baker's shelf6 is fixed in the wall, R. Eliezer says that it is not capable of becoming unclean7 and the Sages say that it is.'8 [We now ask again], which authority [does the statement adduced above follow]? If it is R. Eliezer, then even if the pipe was first hollowed and then fixed [the water from it should not render the mikweh unfit]:9 if it is the Rabbis,10 then even if it was first fixed and then hollowed, [it should still spoil the mikweh]?11 - It is in truth R. Eliezer, and he makes a difference in the case of flat wooden articles, because their uncleanness was decreed only by the Rabbis.12 It would follow from this [would it not], that [the rule about] 'drawn' water derives from the Scripture?13
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(1) Not being a 'vessel'.
(2) For having 'detached' something from the soil.
(3) 'Uk. III, 10, v. infra 80b.
(4) I Sam. XIV, 27. The Hebrew word is יערת, lit. 'wood of honey'.
(5) Even though the comb is not fixed in the soil. Hence we cannot say that this statement of R. Eliezer is incompatible with the one about the pipe.
(6) A flat board either for kneading on or for resting loaves on.
(7) As not being a 'vessel'.
(8) Because the final provisions made after it is fixed in the wall to make it suitable for kneading or resting loaves, make it a vessel. Kel. XV, 2.
(9) Because it becomes part and parcel of the ground, as the shelf of the wall.
(10) I.e., the Sages.
(11) Because here too the hollowing out after it is fixed should make it a 'vessel'.
(12) It is deemed a 'vessel' for purposes of uncleanness only by the Rabbis. Hence when the board is affixed to the wall it loses the character of a 'vessel' ' but not so the pipe which is a real vessel, retaining the character of a vessel even after being attached to the ground.
(13) Otherwise why is R. Eliezer more particular about it than about the board? [That is, provided 'drawn water' constitutes the larger quantity in the mikweh (Rashb.), v. however Tosaf. s.v. מכלל.]But are not all agreed that it was decreed by the Rabbis [on their own authority]? And further, R. Jose son of R. Hanina has said that the dispute [between R. Eliezer and the Rabbis] concerned a board of metal!1 We must therefore say that in truth the above statement follows the Rabbis, and that they make a difference in the case of 'drawn' water2 because its uncleanness was decreed [only] by the Rabbis. If that is the case,3 then even if he first hollowed it and then fixed it [it should not spoil the mikweh]?4 - There where it was hollowed and then fixed the case is different, because it was in the category of a vessel while still unfixed.5
R. Joseph raised the following question: If a man, seeing the rain descend on the casing of his handmill, decided to regard this as a washing, what is its effect upon seeds?6 If we accept the opinion of R. Eliezer, that anything attached to the ground is in the same category as the ground, no question will arise.7 Where the question arises is if we accept the view of the Rabbis who said that it is not in the same category as the ground?8 - This question must stand over.
R. Nehemiah the son of R. Joseph sent to Rabbah the son of R. Huna Zuti at Nehardea the following instruction: When this woman presents herself to you,
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(1) Flat metal articles are susceptible to uncleanness biblically. V. Kel. XI, 1.
(2) I.e., they are less stringent in regard to it than in regard to the shelf of metal.
(3) That the Rabbis draw no distinction between whether it was first hollowed and then fixed or otherwise, and that their reason in the case of the mikweh is because, as it is only Rabbinical, there is no need to be so particular in regard to 'drawn' water.
(4) Being reckoned as part and parcel of the ground.
(5) And therefore the Rabbis were not willing to relax the rule to such an extent.
(6) According to Lev. XI, 38, seed on which water is 'put' becomes susceptible to uncleanness. According to the Rabbis, water is considered 'put' on seed only if there is a conscious desire on the part of someone to that effect. Falling rain would therefore not ordinarily be regarded as being 'put' on seed and would not make it susceptible to uncleanness. In this case, however, the owner consciously desires it to fall on the handmill, and the question therefore arises whether this desire on his part affects the seeds also.
(7) The rule is that water is not regarded as being 'put' on anything unless that thing is detached from the soil. If therefore the handmill is regarded as being in the same category as the soil, the rain is not technically 'put' on it, however much the owner may desire its falling, and therefore it can have no effect on the seeds.
(8) In the Baraithas quoted above, the Rabbis laid down that a mortar fixed to the ground is not sold with a house and a board fixed in a wall is capable of receiving uncleanness, the reason in both cases being that, though now fixed, since they were originally separate they are not counted as part of the ground. The question therefore arises whether we apply the same rule to a handmill which, though originally detached, is more of a fixture than the mortar, since according to the Rabbis of the Baraitha referred to, it is sold along with the house (Tosaf.).collect for her a tenth part of her father's estate1 even from the casing of a handmill.2 R. Ashi said: When we were in the court of R. Kahana, we used to collect such dues from the rent of houses also.3
MISHNAH. IF A MAN SELLS A COURTYARD HE [AUTOMATICALLY] SELLS THE HOUSES, PITS, DITCHES AND CAVES [ATTACHED TO IT,] BUT NOT MOVABLES. IF, HOWEVER, HE SAYS TO THE PURCHASER, [I SELL] IT AND ALL ITS CONTENTS, ALL ARE INCLUDED IN THE SALE.4 IN EITHER CASE, HOWEVER, HE DOES NOT SELL A BATH OR AN OLIVE PRESS THAT MAY BE IN IT. R. ELIEZER SAYS: IF A MAN SELLS A COURTYARD, HE ONLY SELLS WITH IT THE SPACE OF THE COURTYARD.5
GEMARA. Our Rabbis taught: If a man sells a courtyard he sells [with it] the outer and the inner apartments,6 and the sand-field7 in it. As to the shops, those that open on to it8 are sold with it, those that do not open on to it9 are not. Those that open on to both sides are sold with it. R. Eliezer says: If a man sells a court he sells only the air of the court.
The Master says [here] that shops opening on to both sides are sold with the courtyard. [How can this be,] Seeing that R. Hiyya has learned that they are not sold with it? - There is no contradiction. The former speaks of shops of which the main entrance is in the courtyard,10 the latter of those of which the main entrance is in the street.
R. ELIEZER SAYS: IF A MAN SELLS A COURTYARD, HE SELLS ONLY THE SPACE OF THE COURTYARD. Raba said: If the vendor says [in Babylonia], I sell you a diretha,11 no one disputes that he means the apartments. Where the authorities differ is when he says darta,12 one [R. Eliezer] holding that in that case he means the open space only, the other [the Rabbis] that he means the apartments as well. According to another version: Raba said: If he said darta, all are agreed that he meant the apartments as well. Where they differ is in the case where he said 'hazer',13 one holding that this means only the space of the courtyard and the other that it is analogous to the courtyard of the Tabernacle.14
Raba further said: If a man sells another the shore15 of a river and its bed,16 if the purchaser takes possession of the shore he does not thereby acquire ownership of the bed, and if he takes possession of the bed he does not thereby acquire ownership of the shore.17 Is that so? Has not Samuel laid down that if a man sells another ten fields in ten different provinces, as soon as the purchaser has taken formal possession of one18 he becomes owner of all? - The reason there is that the earth is all one stretch19 and all [the properties] are utilised in the same way. Here, however, one thing is for one purpose and the other for another.
According to another version,
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(1) If a man died intestate, his daughter was entitled to a tenth part of his landed estate, but not of his movable property, v. Keth. 52b.
(2) This shows that R. Nehemiah regarded a handmill as part of a house.
(3) The rent being in the same category as the house, which is also an immovable.
(4) That is to say, things used in the house, but not things stored in it like wheat or barley. V. infra 150a.
(5) Lit., 'the air of the courtyard'. And in the case of immovables we do not say that the price is an indication, as in the case of movables.
(6) I.e., those opening on the courtyard and those further back.
(7) A shaft from which sand is dug for making glass.
(8) And which are for the service of the residents of the courtyard.
(9) But on to the street.
(10) Lit., 'of which most of the use is within'.
(11) Aramaic for 'residence'.
(12) Aramaic for 'courtyard'.
(13) Hebrew for 'courtyard'.
(14) Of which it is written, The length of the court shall be an hundred cubits and the breadth fifty everywhere (Ex. XXVII, 18), which shows that the Tent of Assembly which was in the court was reckoned along with the court.
(15) For the sake of the sand. Lit., 'a sandy field'.
(16) For gold and silver washings, or, according to others, for the fish.
(17) Because they are used for different purposes and have different names.
(18) By digging a little or some similar action.
(19) Lit., 'the block of the landRaba said in the name of R. Nahman: If the purchaser takes formal possession of the shore he becomes thereby owner of the bed. Surely this is self-evident, since Samuel has laid down that if a man sells the fields, etc.? - You might argue that in that case the reason is that all the earth is one stretch, but here one thing is used for one purpose and the other for another. Now I know [that we do not argue thus].
MISHNAH. IF A MAN SELLS AN OLIVE PRESS, HE [AUTOMATICALLY] SELLS THEREWITH THE SEA AND THE POUNDING STONE AND THE 'MAIDENS', BUT HE DOES NOT SELL THE THWARTS NOR THE WHEEL NOR THE BEAM.1 IF, HOWEVER, HE SAYS TO THE PURCHASER, '[I SELL] IT AND ALL ITS CONTENTS', ALL THESE THINGS ARE INCLUDED IN THE SALE. R. ELIEZER SAYS THAT IF A MAN SELLS AN OLIVE PRESS HE INCLUDES THE BEAM.2
GEMARA. The SEA is [what is called in Aramaic] 'lentil'.3 The POUNDING STONE, according to R. Abba bar Memel, is [what is called in Aramaic] 'crusher'.4 The 'MAIDENS', according to R. Johanan, are cedar posts by which the beam is supported.5 By THWARTS is meant planks.6 The WHEEL is a winch.7 The BEAM is actually a beam.
Our Rabbis taught: If a man sells an olive press, he sells therewith the planks8 and the tanks and the crushers and the lower millstone but not the upper one.9 If he uses the formula 'it and all its contents', all these are sold with it. In either case he does not sell the stirrers nor the sacks and leather bags.10 R. Eliezer says that if a man sells an olive press he automatically includes the beam, since it is this which gives the olive press its name.
MISHNAH. IF A MAN SELLS A BATH HE DOES NOT [AUTOMATICALLY] INCLUDE EITHER THE PLANKS11 OR THE BASINS12 OR THE BATHING APPAREL.13 IF HE SAYS TO THE PURCHASER, [I SELL YOU] 'IT AND ALL ITS CONTENTS', ALL THESE ARE INCLUDED. IN EITHER CASE HE DOES NOT SELL THE CISTERNS OF WATER NOR THE SHEDS FOR WOOD.14
GEMARA. Our Rabbis taught: If a man sells a bath, he [automatically] includes the cupboards for the boards and for the head towels15 and for the basins and the curtains,16 but not the boards nor the head towels nor the basins nor the curtains themselves. If he says to the purchaser, ['I sell you] it and all its contents', all these are included. In either case he does not include the pools which supply him with water whether
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(1) All these terms are explained in the Gemara. The first three things mentioned are apparently fixtures, the others, though part and parcel of the press, are not fixtures.
(2) Since this is the most essential part of an olive press.
(3) A trough for collecting the olive juice.
(4) Apparently a stone or piece of cement with a hollow for fixing the pounder in.
(5) Strictly speaking, the beam was attached to a cross-bar joining two posts. These were what were called in Old French the 'gemelles' (twins), and in L. 'sorores' (sisters).
(6) Which were lowered on the pulp after treading to distribute the pressure equally. According to another, more probable opinion, we should render 'stirrers', for stirring up the pulp.
(7) For raising the beam. [On all these terms v. Krauss, op. cit. II, 222ff.]
(8) Apparently boards around the olives to keep them in their place during the pressing.
(9) Before being placed in the tank the olives were partly crushed in a handmill, the lower stone of which was fixed in the ground.
(10) For carrying the olives.
(11) For standing on after the bath.
(12) Var. lec. 'benches'.
(13) Var. lec. 'hangings'.
(14) Because these are not necessarily adjuncts of a bathhouse, and can be used for other purposes.
(15) For covering the head after the bath.
(16) Al. 'towels'.in the summer season1 or in the rainy season, nor the place where the wood is stored. If, however, he says, 'I sell you the bath and all its accessories', they are all included.2
A certain man said to another, 'I herewith sell you this olive press and all its accessories. There were certain shops abutting on it on [the roofs of] which they used to spread sesame seeds.3 [The question if these were included in the sale] came before R. Joseph. He said: [We can decide from what we have learnt:] If he says, 'I sell you a bath and all its accessories,' all are included in the sale.4 Said Abaye to him: But has not R. Hiyya learnt that they are not all included?5 R. Ashi therefore said: We have to distinguish. If the vendor says, ['I sell you] the olive press and all its accessories, and these are its boundaries,' the purchaser acquires them,6 but otherwise not.
MISHNAH. IF A MAN SELLS A TOWN, HE [AUTOMATICALLY INCLUDES THE HOUSES,7 THE PITS, DITCHES AND CAVES, THE BATHS, THE PIGEON COTES, AND THE IRRIGATED FIELDS [ATTACHED TO IT], BUT NOT MOVABLES. IF, HOWEVER, HE USED THE WORDS 'IT AND ALL ITS CONTENTS', EVEN IF THERE WERE CATTLE AND SLAVES IN IT THEY ARE ALL SOLD. R. SIMEON B. GAMALIEL SAYS THAT IF ONE SELLS A TOWN HE SELLS ALSO THE SANTER.8
GEMARA. R. Aha b. R. 'Awia said to R. Ashi: From this [Mishnah] we may conclude that a slave comes under the head of movables,9 since if he came under the head of fixed property, he would be sold along with the town. [You say] then that a slave comes under the head of movables. If so, why does our Mishnah say EVEN [SLAVES]?10 We must say therefore [must we not], that there is a difference between animate and inanimate movables?11 You may [thus] also hold that a slave comes under the head of land, but that there is a difference between mobile and immobile land.12
RABBAN SIMEON B. GAMALIEL SAYS THAT IF ONE SELLS A TOWN HE DOES NOT SELL THE SANTER. What [is meant by] SANTER? - Here13 it was translated bar mahawanitha.14 Simeon b. Abtolmus says that it means tilling fields.15 According to the one who says that it means a 'recorder', there is no question that fields are sold with the town;16 but according to the one who says that it means 'fields', the recorder is not sold with the town.17 We learned: OLIVE PRESSES AND BETH HASHELAHIN [IRRIGATED FIELDS], and it was assumed that beth hashelahin meant tilling fields, as indicated by the Scriptural verse, and [God] sendeth [sholeah] waters upon the fields.18 Now all is well and good if we adopt the opinion of the one who said the word santer means a 'recorder'; the first Tanna [of the Mishnah] lays down that fields are sold with the town but not the recorder, and Rabban Simeon b. Gamaliel comes and tells us that the recorder also is sold. But if we take the word to mean 'fields', has not the first Tanna also said this?19 - You think that shelahin means tilling fields? No; it means 'orchards', as indicated by the text, Thy shoots [shelahayik] are an orchard of pomegranates,20 [and the first Tanna tells us that these are sold] but not tilling fields,21 and R. Simeon comes and tells us that tilling fields also are sold.
According to another version, it was assumed that shelahin means orchards. Now it is all well and good if we take the word santer to mean 'fields'; the first Tanna says that orchards are sold with the town but not fields, and Rabban Simeon b. Gamaliel comes and tells us that fields are also sold.
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(1) When the water supply is low, and therefore it might be thought that the pools go with the bath.
(2) Because they are to a certain extent adjuncts of the bath.
(3) To dry, in order that they might be crushed in the press and the oil sold afterwards in the shops.
(4) And these things are as closely connected with the olive press as the cisterns and wood-shed with the bath.
(5) Because they are not part and parcel of the olive press.
(6) Because by using this formula the vendor shows that he desires to include the shops.
(7) And a fortiori the courts, which form part of the town space.
(8) The meaning of this term is discussed in the Gemara.
(9) That is, in ordinary parlance when a man speaks of movables he includes slaves.
(10) Which implies that ordinarily slaves are not included with movables.
(11) Lit., 'mobile and immobile movables'. In point of fact, slaves were acquired in the same way as land and not as movables.
(12) And therefore if the town is sold without further specifications it does not include the slaves.
(13) In Babylon.
(14) Lit., 'one who shows', a recorder; a slave appointed by the town to answer inquiries respecting the boundaries of fields. [Rashi, Sanh. 98b, reads bar mehuznaitha, 'one of the district', v. Krauss, op. cit. II, 570.]
(15) A stretch of fields adjoining the town.
(16) Being inanimate.
(17) Being animate.
(18) Job V, 10.
(19) And what does R. Simeon add to his ruling?
(20) Cant. IV, 13.
(21) Which are not actually part of a town like orchards.But if we take the word to mean 'recorder', when the first Tanna says [that the man who sells the town sells also the] orchards, how can R. Simeon supplement him by saying that he sells the recorder?1 - Do you think that shelahin means 'orchards'? No; shelahin means 'fields', as indicated in the verse, and sendeth waters upon the fields. [The first Tanna says that these are sold] but not the recorder, and Rabban Simeon b. Gamaliel comes and says that the recorder also is sold.
[Which is right? - ] Come and hear: 'R. Judah says that the santer is not sold but the town clerk2 is sold.' Since the town clerk is a man, must not the santer also be a man? - This does not follow; the one can be one thing, the other another. But can you possibly maintain this3 Seeing that the Baraitha in its next clause proceeds: '[But one who sells the town does not sell] its remnants nor its adjoining villages nor the woods that open on to it nor its preserves for animals, birds and fishes;' and [in commenting on this] we said: What are remnants? Bizli. And what are bizli? R. Abba said: The fag-ends of fields;4 which shows that [in R. Judah's opinion] only such fag-ends are not sold with the town but the fields themselves are? - We must reverse the statement quoted above to read: R. Judah says that the santer5 is sold, but the town clerk is not sold. But how can you make R. Judah concur with Rabban Simeon b. Gamaliel6 seeing that he concurs with the Rabbis, as the latter clause [in the passage quoted above] states: 'Not its remnants nor its adjoining villages', whereas Rabban Simeon b. Gamaliel holds that if a man sells a town he does sell the adjoining villages, as it has been taught: 'If a man sells a town, he does not sell its adjoining villages; Rabban Simeon b. Gamaliel, however, says that he does sell the adjoining villages?' - R. Judah agreed with him in one thing7 and differed from him in another.8
'Nor preserves of animals, birds and fishes.' A contradiction was pointed out [between this and the following]: 'If the town has adjoining villages, they are not sold with it. If one part of it is on an island9 and one part on the mainland, or if it has preserves of animals, birds or fishes, these are sold with it.' - There is no contradiction. In the one case they open towards10 the town, in the other away from the town. But did we not learn above that the woods adjoining it [are sold with it]? - We should read, 'that are separated from it'.11
MISHNAH. IF A MAN SELLS A FIELD HE [AUTOMATICALLY] INCLUDES THE STONES WHICH ARE USED IN IT AND THE VINEYARD CANES WHICH ARE USED IN IT12 AND THE PRODUCE WHICH IS STILL ATTACHED TO THE SOIL AND A CLUMP OF REEDS OCCUPYING LESS THAN A BETH ROBA'13 AND A WATCHMAN'S HUT WHICH IS NOT CEMENTED14 AND A YOUNG CAROB TREE15 AND A YOUNG SYCAMORE TREE,16 BUT HE DOES NOT INCLUDE STONES WHICH ARE NOT FOR USE IN THE FIELD NOR CANES WHICH ARE NOT FOR USE IN THE VINEYARD NOR PRODUCE WHICH HAS BEEN DETACHED FROM THE SOIL. IF HE USES THE WORDS 'IT AND ALL ITS CONTENTS', ALL THESE ARE SOLD WITH IT. IN EITHER CASE, HOWEVER, HE DOES NOT SELL A CLUMP OF REEDS COVERING A BETH ROBA'17 [OR MORE] NOR A WATCHMAN'S HUT WHICH IS CEMENTED NOR A FULLGROWN CAROB18 NOR A CROPPED SYCAMORE.19
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(1) What has one to do with the other? R. Simeon should have said: He sells the fields and the recorder.
(2) An official who kept a record of fields, houses, and inhabitants for purposes of taxation.
(3) That the santer in the opinion of R. Judah means 'fields'.
(4) Strips at the far end of the stretch of fields separated from the rest by rocky ground or the like.
(5) In the sense of 'fields'.
(6) In saying that the fields are sold with the town.
(7) In regard to the santer.
(8) In regard to the adjoining villages.
(9) But is still reckoned as belonging to the town and goes under the same name.
(10) Lit., 'their aspect breaks through towards'.
(11) המוקצין הימנה instead of המוקצין לה Being separate they open away from it.
(12) This is explained in the Gemara.
(13) A quarter of a kab's space, about 200 square cubits. This is too small to be reckoned independently.
(14) I.e., put together of loose stones.
(15) Lit., 'a carob tree which is not grafted'
(16) Lit., 'the virgin of the sycamore', i.e., one not yet pruned.
(17) These having an individuality of their own.
(18) Lit., 'a carob which has been grafted'.
(19) Lit., 'the block of a sycamore'. Sycamore trees are cropped to improve their growth.
GEMARA. What is meant by STONES WHICH ARE FOR USE IN IT? They translated it here1 as 'weight stones'.2 'Ulla said that they are stones laid in order for making a fence. But has not R. Hiyya learned that they are stones piled up1 for making a fence? - Read [instead of piled up] 'laid in order'.
[You say,] 'Here they translate "weight stones"'. According to R. Meir,3 [this means] if they are ready for use even though they have not yet actually been used,4 but according to the Rabbis only if they have been actually used.5 If we take the view of 'Ulla that they are stones laid in order for making a fence, then according to R. Meir [it would be sufficient] if they are ready even though they have not been laid in order,6 while according to the Rabbis they must have been laid in order.
CANES7 WHICH ARE FOR USE IN THE VINEYARD. What are these canes for? - In the school of R. Jannai it was explained to mean canes which are placed under the vines [to support them]. According to R. Meir [they would be sold with the field] if they are peeled even though they have not yet been fixed, according to the Rabbis only if they have been fixed.
PRODUCE STILL ATTACHED TO THE SOIL. Even though it is ripe for cutting down.8
A CLUMP OF REEDS LESS THAN A BETH ROBA'. Even though they are thick.9
A HUT THAT IS NOT CEMENTED. Even though it is not fixed in the soil.
A YOUNG CAROB AND A YOUNG SYCAMORE. Even though they are of good size.10
BUT HE DOES NOT SELL THE STONES WHICH ARE NOT FOR USE IN IT. According to R. Meir [this is only] if they are not ready for use, but according to the Rabbis even if they simply have not yet been used. If we take the view of 'Ulla that they are stones laid in order for a fence, then according to R. Meir they are not sold only if they are not yet ready for use, but according to the Rabbis, even if they simply have not yet been laid in order.11
NOR THE CANES OF THE VINEYARD WHICH ARE NOT FOR USE IN IT. According to R. Meir this is if they are not peeled, but according to the Rabbis even if they simply are not yet fixed.
NOR PRODUCE DETACHED FROM THE SOIL. Although it still requires to be left in the field.12
NOR A CLUMP OF REEDS OCCUPYING A BETH ROBA'. Even though the reeds are small. R. Hiyya b. Abba said in the name of R. Johanan: This does not apply only to a clump of reeds; even a small perfume bed if it has a name of its own is not included in the sale of the field.13 R. Papa said: What we mean by this is that it is known as 'so-and-so's roses'.
NOR A WATCHMAN'S HUT WHICH IS CEMENTED. Even though it is fixed in the ground.14
R. Eleazar asked: What is the rule regarding the frames of doors? Where they are fixed to the wall with cement there is no question [that they are sold with], since they are firmly attached.15 The question arises only where they are connected with hooks. This question must stand over.
R. Zera asked what was the rule regarding the frames of windows.16 Do we say that they are purely for ornament,17 or do we say that after all they are attached? This question must [also] stand over.
R. Jeremiah asked: What is the rule regarding the castors of the legs of a bed?18 Where they are moved with the bed of course the question does not arise, because they go along with it. Where there is room for question is where they are not moved with it. - This [also] must stand over.
NOR THE FULL GROWN CAROB NOR THE CROPPED SYCAMORE.
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(1) In Babylon.
(2) Stones placed on the sheaves to keep them from being blown about by the wind. (12) Even this making them part and parcel of the field.
(3) R. Meir lays down (infra 78b) that the sale of a vineyard automatically includes the accessories of the vineyard, from which we infer that in all analogous cases R. Meir would include something that the Rabbis would exclude. Some of these things are now specified in connection with the Mishnah under discussion.
(4) Lit., 'placed'.
(5) Since only then do they become part and parcel of the field.
(6) R. Meir therefore is not in agreement with our Mishnah as interpreted by 'Ulla.
(7) The Hebrew word is kanim, which usually means 'canes' or 'reeds' still growing in the ground. Hence the question of the Gemara.
(8) And though normally such corn is counted as already cut.
(9) Lit., 'strong'.
(10) Lit., 'strong'.
(11) V. p. 274, n. 1.
(12) For drying.
(13) And so too with anything that is commonly known as something distinct from the field.
(14) This does not make it part of the ground, because now it is practically a house.
(15) And therefore are reckoned as part of the house.
(16) If attached to the wall with hooks.
(17) And therefore not sold with the house.
(18) Pieces of wood placed under them to keep them from contact with the earth.Whence is this rule1 derived? - Rab Judah said in the name of Rab: From the Scriptural verse, So the field of Efron which was in Machpelah . . . and all the trees that were in the field that were in the border thereof etc.2 [This indicates that Abraham in buying the field acquired all the trees] that require a boundary round about,3 and [that the purchase] did not include those that do not require a boundary round about.4 R. Mesharsheya said: This proves that the inclusion of the border5 in the [purchase of a field] is prescribed in Scripture.6
Rab Judah said: When a man sells a field, he should write in the deed, 'Acquire hereby the date trees, other large trees, small trees, and small date trees.'7 It is true that even if he does not insert these words the transfer is valid,8 but the deed is made more effective in this way.9 If he says to him, 'I sell you land and date trees',10 we have to consider. If he has any date trees, he has to give him two,11 and if not he has to buy two for him, and if his date trees are mortgaged he has to redeem two for him. If he says, 'I sell you the land with the date trees', we have to consider; if there are date trees in it he has to give them to him, and if there are none, it is a sale made under a misapprehension.12 If he says, I sell you a date tree field, the purchaser cannot claim date trees,13 because what he means is simply 'a field suitable for date trees'. If he says, I sell you the field except such-and-such a date tree, then we have again to consider. If it is a good date tree,14 we presume that he reserved that one for himself; if it is a poor tree,15 then in fortiori he means to reserve the better ones. If he says, [I sell you the field] without the trees,16 if there are trees in it, [the purchaser acquires all] except the trees; if there are date trees in it [but no others, he acquires the whole] without the date trees;17 if there are vines, [he acquires the whole] without the vines;18 if there are trees and date trees, [he acquires the whole] with the exception of the trees; if there are trees and vines, [he acquires the whole] with the exception of the trees; if there are date trees and vines, [he acquires the whole] with the exception of the vines.19
Rab said: [When a vendor reserves trees], all those which have to be climbed by a rope ladder [to pluck the fruit] are reserved, while those which do not need this are not reserved.20
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(1) That these trees are not to be reckoned as part and parcel of the field.
(2) Gen. XXIII, 17.
(3) I.e., small trees which have as it were no individuality but are only known as being included within such boundaries.
(4) Viz., large trees which have an individuality apart from the field in which they are.
(5) I.e., the trees planted on the border.
(6) And is not merely a regulation of the Rabbis.
(7) So Aruch. According to Rashb, all four were species of date trees.
(8) And the purchaser acquires both the field and the trees. V. the Mishnah supra.
(9) That is to say, all possibility of error is eliminated.
(10) This formula, implies two transfers, one of land and one of trees.
(11) Over and above any date trees there may be in the field, which are acquired with the field (v. Mishnah). The number two is taken as the minimum indicated by the word 'trees'.
(12) And the transaction is null and void.
(13) Supposing there are none in the field.
(14) I.e., bearing a moderate amount of fruit.
(15) Bearing less than a kab of dates.
(16) 'Trees' was a generic term for all trees except date trees and vines.
(17) Because date trees can also be called trees where no others are under consideration.
(18) Because vines are similarly called trees.
(19) Because as between date trees and vines, the name 'trees' would be more readily applied to the latter.
(20) Being too small to count.The judges of the Exile,1 however, say that all which are bent back by the yoke2 are not reserved, but all those which are not bent back by the yoke are reserved. There is really no conflict of opinion, because the former [speaks] of date trees3 and the latter [speaks] of other trees.4
R. Aha b. Huna enquired of R. Huna: [If the vendor says, I sell you the whole field] with the exception of such-and-such a carob tree or such-and-such a sycamore, how do we decide? Is it that carob alone which the purchaser fails to acquire, while he acquires all the rest, or does he fail to acquire the rest also?5 - He replied: He does not acquire them. R. Aha then raised an objection [from the following]: [If the vendor says], Except such-and-such a carob tree, except such-and-such a Sycamore, he does not obtain possession. Does this not mean that he fails to acquire possession of that carob, but he does acquire possession of the rest? - No, he replied; he fails to acquire possession of the other carobs also. The proof is this. Suppose [he was selling him a field and] said to him, 'My field is sold to you with the exception of such-and-such a field',6 would this mean that the purchaser failed to acquire ownership of that field alone, but did acquire ownership of all the other fields [belonging to the vendor]? Of course he would not acquire ownership.7 So here too he does not acquire ownership.
Some report this discussion as follows. R. Ahab. Huna inquired of R. Shesheth: [If the vendor said, 'I sell you the field] with the exception of half of such-and-such a carob tree', or 'half of such and-such a sycamore', how do we decide? Of course he does not acquire the other carobs.8 The question is, does he acquire the half left over in the carob specified,9 or does he fail to acquire even that? - He replied: He does not acquire it. R. Aha then raised an objection [from the following]: '[If the vendor says], "Except half of such-and-such a carob, half of such-and-such a sycamore", he does not acquire the remaining carobs'. Does not this mean that he only fails to acquire the remaining carobs, but he does acquire the remainder of that carob?-No, replied R. Shesheth; even the remainder of that carob he does not acquire. The proof is this. Suppose [he was selling him a field and] said to him, 'My field is sold to you with the exception of half of such-and-such a field', would he fail to acquire only that half and acquire the other half? Obviously he would not acquire it; so here too he does not acquire.10 R. Amram inquired of R. Hisda: If a man deposits something with another and receives a written acknowledgment for it, and the other subsequently asserts, 'I returned it to you', how do we decide? Do we argue that since we should accept his word if he cared to say that he had lost it through circumstances over which he had no control,11 now too we accept his word,12 or [do we accept the plea of] the other if he says, 'How comes your acknowledgment in my hand?'13 - He replied: We accept the word [of the defendant]. But the claimant can plead, 'How comes your acknowledgment in my hand?' - Said he [R. Hisda]: On your own argument, if the defendant said, 'I lost it through circumstances over which I had no control,' could the claimant plead, 'How comes your acknowledgment in my hand?'14 He [R. Amram,] replied: When all
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(1) Samuel and Karna (Rashb.); v. p. 209, n. 5.
(2) When the ground under the tree is ploughed by oxen and the yoke knocks against it.
(3) Which being slender can be bent back even when well grown.
(4) The fruit of which can be plucked without the use of a ladder.
(5) If the vendor had said nothing, the purchaser would not have acquired any of the carob trees, since these are not sold with the field
(v. Mishnah). Since therefore he goes out of his way to except this carob tree, do we presume that he desires to include the rest in the sale?
(6) Bordering on the other.
(7) Because obviously the vendor only meant to sell him one field, in spite of his foolish manner of expressing himself.
(8) Since it would be impossible to press so much into the word 'except' in this case.
(9) Does the 'except' avail for this?
(10) This passage is introduced at this place because it contains a ruling of the 'judges of the Exile' mentioned above.
(11) According to the rule laid down in Ex., XXII, 10,11, If a man deliver unto his neighbour an ass etc. to keep,' and it die, or be hurt, or be driven away, the oath of the Lord shall be between them both . . . and the owner thereof shall accept it.
(12) Since he is putting forward a weaker plea.
(13) I.e., if, as you say, you returned it to me, why did you not take back the acknowledgment?
(14) This would not be any evidence, because the defendant could say that seeing he was pleading force majeure he thought it unnecessary to take back the acknowledgment.is said and done, even if he pleads that it was taken from him by violence, is he not required to take an oath?1 Here too, when I say that we accept his word, I mean that we accept it on his taking an oath.
May we say that the point at issue [between R. Hisda and R. Amram] is the same as that between the following Tannaim,2 as it has been taught: 'If a claim is made against orphans on the ground of a "purse bond",3 the judges of the Exile4 say that the claimant is entitled on taking an oath5 to recover the whole, but the judges of Eretz Yisrael6 say that he is entitled on taking an oath to recover only half.'7 Now all authorities accept the view of the Nehardeans who say that this transaction is half a loan and half a deposit.8 May we not say then that the point in which they differ is this, that the one authority [the judges of the Exile] holds that the claimant may plead effectively, 'How comes your bond to be in my hand',9 and the other holds that he cannot? - No; all concur in the view of R. Hisda [that he cannot], and here the point of difference is this, that the one [the judges of the Exile] holds that if the borrower had paid [before his death] he would have told [his children],10 while the other holds that we may presume death11 to have prevented him.
R. Huna b. Abin sent a message12 that if a man places a deposit with another and receives an acknowledgment and the latter subsequently asserts that he has returned it, his word is accepted;13 and if a claim is made against orphans on the ground of a 'purse bond', the claimant is entitled on taking an oath to recover the whole.14 Have we not here two [contradictory rulings]? - In the second case there is a special reason, that if he had paid he would have told his children. Raba said: The law is that the claimant is entitled to take an oath and recover half.15 Mar Zutra said that the law follows the decision of the judges of the Exile.16 Said Rabina to Mar Zutra: Has not Raba laid down that he is entitled to take an oath and recover [only] half?17 - He replied: In our version the reverse opinion is ascribed to the judges of the Exile.18
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(1) According to the text quoted above.
(2) The authorities actually quoted in the passage which follows are usually regarded as Amoraim, not Tannaim, v. nn. 8 and 20. [Funk, S., Die Juden in Bobylonien, I, n. 2, iv, regards the authorities cited here as Babylonian and Palestinian Tannaim respectively, belonging to the pre-Amoraic age, v. infra 100a. On the other hand, the words 'that between Tannaim as it has been taught' do not occur in MSS. v. D.S.]
(3) A bond given by a borrower for money borrowed for business purposes, on condition that the profit shall be equally divided between him and the lender.
(4) Samuel and Karna. V. pag. 209, n. 5.
(5) That oath is the one that had to be taken by all persons recovering from orphans debts incurred by their father. V. supra 56b, 33a.
(6) R. Ammi and R. Assi, v. Sanh. 17a.
(7) The reason is given immediately.
(8) If money was borrowed in this way, the Rabbis regarded it as consisting of two parts, one half a loan, the profit of which went to the borrower (the lender being forbidden to take it, because it is counted as interest), and the other half a deposit, the profit of which went to the lender. Hence the law of loan applies to one half of it and the law of deposit to the other half. If therefore it was forcibly taken from the borrower, he has to pay back one half to the lender (since a borrower is responsible for a loan), but he can release himself from payment of the other half on taking an oath that it was forcibly taken from him, according to the law of deposit quoted above. In this case we suppose that the borrower died and the claim is made against his children under age. That half is to be paid back there is no question; the only doubt is whether the claimant can recover the half which is regarded as a deposit.
(9) And therefore we cannot plead on behalf of the orphans that the money had been returned, seeing that the father had he been alive could not have pleaded thus.
(10) Therefore we cannot plead on their behalf that the money had been returned, although if the father had been alive he could have effectively pleaded thus, as explained above.
(11) Lit., 'Angel of death'.
(12) V. supra p. 211, n. 10.
(13) According to the decision of R. Hisda recorded above.
(14) This shows that if the orphans plead that the father had returned the money, their word is not accepted.
(15) Viz., the half that is regarded as a loan.
(16) That the claimant from the orphans can recover the whole.
(17) And how can you contradict Raba who is an older authority than you?
(18) I.e., we make them say that he recovers half.MISHNAH. [IF A MAN SELLS A FIELD] HE DOES NOT INCLUDE1 THE WELL NOR THE WINE PRESS NOR THE DOVECOTE, WHETHER IN USE OR NOT IN USE,2 AND [IF HE REQUIRES] A RIGHT OF WAY TO THEM HE MUST BUY IF [FROM THE PURCHASER]. THIS IS THE OPINION OF R. AKIBA.3 THE SAGES HOWEVER SAY THAT HE IS NOT REQUIRED TO DO SO.4 R. AKIBA ADMITS THAT IF THE VENDOR SAYS TO HIM, [I SELL YOU ALL] EXCEPT THESE, HE NEED NOT BUY A RIGHT OF WAY.5 IF HE SELLS THESE THINGS [WITHOUT THE FIELD] R. AKIBA SAYS THAT HE [THE PURCHASER] HAS NO NEED TO BUY A RIGHT OF WAY TO THEM, BUT THE SAGES SAY THAT HE HAS. THE ABOVE RULE6 APPLIES ONLY TO A VENDOR, BUT A DONOR IS HELD TO MAKE ALL THESE PART OF THE GIFT.7 IF BROTHERS DIVIDE AN INHERITANCE, ONE WHO TAKES POSSESSION OF A FIELD TAXES POSSESSION OF ALL THESE THINGS.8 ONE WHO SEIZES THE PROPERTY OF A PROSELYTE9 IN TAKING POSSESSION OF A FIELD TAKES POSSESSION OF ALL THESE THINGS. IF A MAN SANCTIFIES10 HIS FIELD HE SANCTIFIES ALL THESE THINGS.11 R. SIMEON, HOWEVER, SAYS THAT IF A MAN SANCTIFies HIS FIELD HE SANCTIFIES ONLY12 THE FULL-GROWN13 CAROB AND THE CROPPED14 SYCAMORE TREE.15
GEMARA. Why should the rule of a sale be different from that of a gift? - Judah b. Nakusa explained [the reason] in the presence of Rabbi [saying], The one [the vendor] specifies,16 the other [the donor] does not specify. What do you mean by saying that the one specifies and the other does not specify, when the fact is that just as the one does not specify so the other does not specify? - What we should say is: The latter ought to have specified,17 the former has no need to specify.
A man gave instructions [saying], 'Give to so-and-so a room holding a hundred barrels.' It was found that the room [in question] would hold a hundred and twenty barrels. Mar Zutra [on hearing the case] said, He gave him [the space of] a hundred barrels and not of a hundred and twenty.18 Said R. Ashi to him: Have we not learnt, THIS RULE APPLIES ONLY TO A VENDOR, BUT A DONOR IS PRESUMED TO MAKE ALL THESE PART OF THE GIFT, from which we infer that a donor is presumed to give in a liberal spirit?19 So here [we say that] the donor gives in a liberal spirit.20
IF A MAN SANCTifies A FIELD HE SANCTIFIES etc. R. Huna said: Although the Rabbis have laid down that when a man buys two trees in another man's field he does not acquire any of the soil with them,21 yet if a man sells a field and reserves to himself two trees, he retains some of the soil with them.22 [This rule is valid] even according to R. Akiba who says that the vendor sells in a liberal spirit;23 [for] this applies only to a well and a cistern which do not exhaust the soil, but in the case of trees which do exhaust the soil,
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(1) Even though he inserts the words, 'it and all its contents'.
(2) Lit., 'desolate or inhabited'.
(3) Who said supra 64b that the vendor sells in a liberal spirit.
(4) Because, according to them, he interprets the terms of sale strictly.
(5) As otherwise the exception would be quite superfluous.
(6) That the well etc. are not included in the field.
(7) Because a donor is supposed to give in a liberal spirit.
(8) Because their object in dividing is to get entirely clear of one another.
(9) Who dies without Jewish issue, and whose property can be seized by the first comer. V. supra p. 181, n. 5.
(10) I.e., dedicates to the Sanctuary. V. Lev. XXVII, 26.
(11) Because sanctifying is a kind of gift.
(12) Of all these things excluded in case of a sale.
(13) Lit., 'grafted'.
(14) Lit., 'block of'.
(15) The meaning of this is discussed in the Gemara.
(16) The objects reserved.
(17) If the donor wishes to reserve things for himself, he should specify them, because he is supposed to give in a liberal spirit.
(18) And therefore he acquires only that portion of the room which will hold a hundred barrels.
(19) Lit., 'with a bounteous eye'.
(20) And the whole room is given to the recipient.
(21) As he would if he bought three trees. V. infra 81a.
(22) I.e., the soil under the trunk.
(23) V. supra 64b.if the vendor did not [tacitly] reserve some soil for himself, the purchaser could say to him [when the trees wither], pluck up your tree and be off with it.1
We have learnt:2 R. SIMEON SAYS THAT IF A MAN SANCTIFIES HIS FIELD HE ONLY SANCTIFIES THE FULL-GROWN CAROB AND THE CROPPED SYCAMORE TREE; and in connection with this it was taught: R. Simeon said: What is the reason? Because they suck from a sanctified field.3 Now if you assume that the sanctifier tacitly reserves something to himself, then when the trees suck they suck from his property [do they not]? [We must suppose therefore that] R. Simeon follows R. Akiba4 and that R. Huna was following the Rabbis.5 [But if R. Huna was stating his rule from the point of view of] the Rabbis, it is self-evident?6 - Its practical bearing is that if the trees fall he can plant them again.7
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(1) Immediately (v. Tosaf.), and we assume that the vendor wished to keep a tree for himself in that place in perpetuity.
(2) Here comes an objection to the statement just made by the Gemara that R. Huna's rule holds good even on the view of R. Akiba.
(3) And the rule is that that which sucks from sanctified ground itself becomes sanctified.
(4) In holding that the vendor sells in a liberal spirit, and therefore when a man sanctifies a field he tacitly reserves nothing to himself.
(5) And that his ruling does not accord with the view of R. Akiba.
(6) I.e., it is obvious that the vendor reserves something.
(7) Though he could not tell him, 'Pluck up your tree and be off with it immediately,' it might be assumed that he could not plant them anew once they had fallen.But [on the other hand] can you make R. Simeon concur with R. Akiba,1 seeing that it has been taught, 'If a man sanctifies three trees in a field where ten are planted to a beth se'ah,2 then he [automatically] sanctifies in addition the soil and the [young] trees between them.3 Therefore if he wants to redeem them he has to do so at the rate of fifty shekels of silver for the sowing ground of a homer of barley.4 If they are planted more thickly or less thickly than this,5 or if he sanctifies them one after another, he does not thereby sanctify the soil and the trees between them.6 Therefore if he wants to redeem them, he redeems the trees according to their value. What is more, even if he first sanctifies the trees [one after another] and then sanctifies the ground, when he comes to redeem them he must redeem the trees at their actual value and then redeem [the ground] at the rate of fifty shekels for the sowing ground of a homer of barley.'7 Who is the authority for these rules? If R. Akiba, surely he says that the vendor sells in a liberal spirit; all the more so then the sanctifier.8 If the Rabbis, surely according to them it is the vendor who sells in an illiberal spirit, but the sanctifier sanctifies in a liberal spirit.9 Obviously then it must be R. Simeon. Whom then does R. Simeon follow?10 It cannot be R. Akiba, because he says that the vendor sells in a liberal spirit, all the more so then the sanctifier. Obviously then he follows the Rabbis,11 and R. Simeon further held12 that just as the vendor sells in an illiberal spirit so the sanctifier sanctifies in an illiberal spirit, and he [therefore] reserves the ground to himself.13
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(1) In saying that the sanctifier sanctifies in a liberal spirit.
(2) The regulation spacing. V. supra 26b.
(3) Because three such trees constitute a field, and therefore he in effect sanctifies a field and its contents.
(4) The standard rate for the redemption of land, as laid down in Lev. XXVII, 16.
(5) Lit., 'less (openly) or more (openly)'; with more or less than ten to the beth se'ah. In the former case they constitute a wood, and in the latter they are not part and parcel of the field.
(6) That is to say, the trees do not carry with them the ground.
(7) Because the sanctification of the trees and the sanctifying of the ground are looked upon as two distinct actions.
(8) And therefore the trees even when sanctified one after another should carry at least some ground with them.
(9) Being compared not to a vendor but to a donor, as it says in the Mishnah, IF A MAN SANCTIFIES HIS FIELD, HE SANCTIFIES ALL THESE THINGS.
(10) R. Simeon was a disciple of R. Akiba.
(11) Those who in the discussion with R. Akiba said that the vendor sells in an illiberal spirit.
(12) In opposition to the Rabbis of the Mishnah who intimate that the sanctifier sanctifies in a liberal spirit.
(13) Which shows that R. Simeon could not concur with R. Akiba.But then this would conflict [with what R. Simeon said above, that the carob and sycamore are sanctified] because they suck from the sanctified field?1 - We must say therefore that R. Simeon was arguing from the premises of the Rabbis [of the Mishnah], thus: According to my view, just as the vendor sells in an illiberal spirit so the sanctifier sanctifies in an illiberal spirit, and he reserves some ground for himself.2 But even from your own standpoint [that he sanctifies in a liberal spirit], grant me at least that he sanctifies no more than the carob and sycamore.3 To which the Rabbis would answer that no distinction is to be made.4
To what authority then have you ascribed this clause [in the Baraitha quoted]? To R. Simeon. Look now at the next clause: 'What is more, even if he first sanctifies the trees [one after another] and then sanctifies the ground, if he wants to redeem them he has to redeem the trees at their actual value and the ground at the rate of fifty shekels for the sowing place of a homer of barley.' Now if [this Baraitha is following] R. Simeon, it should determine the valuation according to [the time of] the redemption,5 so that the trees should be redeemed as part of the field.6 For we know that R. Simeon decides according to the time of redemption from what has been taught: 'How do we know that if a man buys a field from his father and then sanctifies it and his father subsequently dies,7 it is reckoned as a "field of possession"?8 Because Scripture says, And if he sanctifies . . . a field which he hath bought which is not of the field of his possession [he shall give thine estimation].9 [This signifies] a field which is not capable of becoming a "field of possession",10 [and we therefore] except [from this rule] such a one as this which is capable of becoming "a field of his possession".11 This is the opinion of R. Judah and R. Simeon. R. Meir says: From where do we know that if a man buys a field from his father and his father dies and he then subsequently sanctifies the field, it is reckoned as a field of his possession? Because it says, If he sanctifies a field which he hath bought which is not of the field of his possession. [This signifies] a field which is not "a field of possession", [and we therefore except] from this rule such a one as this which is a field of his possession.'12 In contrast to this, R. Judah and R. Simeon compare a field which he sanctifies 'before his father dies to a field of his possession.13 Whence do they derive this? If from the verse just quoted, I might rejoin that this justifies only the lesson drawn by R. Meir.14 We must therefore say that [they rule thus] because they go according to the [time of] redemption?15 - Said R. Nahman b. Isaac: As a general rule R. Judah and R. Simeon do not go according to the time of redemption, but in this case they do so because they found a verse which they interpreted [to this effect]. 'If so' [they said to R. Meir], 'it should say, "If he sanctifies a field which he has bought which is not his possession," or even "the field of his possession - What is the force of the words, Which is not of the field of his possession? [It signifies] one that is not capable of becoming the field of his possession, [and we] except from the rule one that is capable of becoming the field of his possession.'16
R. Huna said that the full-grown carob and the cropped sycamore partly come under the law of trees and partly under the law of land. They rank as trees [to the extent] that if a man sanctifies or buys two trees and one of these, the soil in between is reckoned with.17 They rank as land to the extent that they are not included in the transfer of land sold.18
R. Huna further said that a sheaf of two se'ahs partly comes under the law of a sheaf and partly under that of a shock. It ranks as a sheaf [to the extent] that while two sheaves can be regarded as 'forgotten',19 while two with this one are not regarded as 'forgotten'.20 It ranks as a shock as we have learnt: [If a reaper forgets] a sheaf of two se'ahs, it is not regarded as forgotten.21
Rabbah b. Bar Hana said in the name of Resh Lakish: In regard to the full-grown carob and the cropped sycamore we find a difference of opinion between R. Menahem son of R. Jose and the Rabbis.22
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(1) Which shows that R. Simeon holds that the sanctifier sanctifies in a liberal spirit, whereas now it is maintained that he said in an illiberal spirit.
(2) And the carob is not sanctified because it neither sucks from the sanctified ground nor is it reckoned as part of the field.
(3) Which though not part of the field suck from sanctified ground, but not the well etc. which are neither part of the field nor do they stick from the ground.
(4) Between the carob and the well, etc., all being included in the sanctification.
(5) I.e., according to the character of the article to be redeemed at the time of the redemption and not at the time of the sanctifying.
(6) And not separately, at their own value, as they would be if we went by the time of sanctification.
(7) Before the Jubilee, 'when the field would automatically revert to him.
(8) And not of purchase, and it is therefore liable to be redeemed at the rate of 50 shekels for the sowing ground of a homer of barley.
(9) Lev. XXVII, 22, 23. This means that such a field is to be redeemed at its actual value, not at a fixed rate.
(10) E.g., one which he bought from any other man and which would have to be restored to him or his heirs at the Jubilee.
(11) By inheritance.
(12) But not one which is only capable of becoming such subsequently.
(13) This is the reading of Tosaf. The ordinary texts read: 'But in the case where he sanctifies the field before his father dies, R. Judah and R. Simeon do not require a verse; where they require a verse is for the case where he sanctifies it and his father dies subsequently.' As Tosaf. points out, a text certainly was required by R. Judah and R. Simeon for the first statement. The ordinary reading seems to have come in by a copyist's error from Git. 48a.
(14) Which is closer to the literal meaning of the verse.
(15) And this being the case, they interpret the verse accordingly. This proves that R. Simeon decides according to the time of redemption.
(16) The word 'of' is taken to imply 'which is not already a part of his possession, but will subsequently become such', e.g., one which will one day come to him by inheritance.
(17) According to the rule that three trees carry with them the ground between.
(18) Like other trees, if the vendor inserts the words, 'it and all its contents'.
(19) The reference is to the rule in Deut. XXIV, 19: When thou reapest thine harvest in thy field and has forgot a sheaf in the field, thou shalt not go again to fetch it. This rule, according to the Rabbis, applied to one or two sheaves, but not to three.
(20) That is to say, it is treated as a sheaf on a par with the other two sheaves, the three together forming one shock.
(21) Because it is considered as being no longer a sheaf but a shock.
(22) The former holding that they are not sanctified along with a field, the latter that they are.Why does he not say: Between R. Simeon1 and the Rabbis? - He intimates in this way that R. Menahem b. Jose was of the same opinion as R. Simeon.2
MISHNAH. HE WHO SELLS A SHIP SELLS [IMPLICITLY] ITS MAST, SAIL, ANCHOR AND ALL THE IMPLEMENTS NEEDED FOR DIRECTING IT, BUT HE DOES NOT SELL THE CREW,3 NOR THE PACKING-BAGS,4 NOR THE STORES. IF, HOWEVER, HE SAID TO HIM:5 'IT6 AND ALL THAT IT CONTAINS', THEN ALL THESE ARE INCLUDED IN THE SALE.
GEMARA. TOREN7 is the mast; for so it is written: They have taken cedars8 from Lebanon to make masts9 for thee.10 NES7 is the sail; for so it is written: Of fine linen with richly woven work from Egypt was thy sail, that it might be to thee for an ensign.11 [As to] OGEN,7 R. Hiyya taught: These are its anchors; for so it is written: Would ye tarry for them till they were grown? Would ye shut yourselves off12 for them and have no husbands?13
AND ALL THE IMPLEMENTS NEEDED FOR DIRECTING IT - R. Abba said: This refers to the oars;14 for so it is written: Of the oaks of Bashan have they made thine oars.15 And if you desire, you may infer it5 from the following text: And all that handle the oar shall come down from their ships.16
Our Rabbis taught: He who sells a ship sells [implicitly] its wooden implements17 and its [sweet water] tank. R. Nathan says: He who sells a ship sells implicitly its buzith.18 Symmachus says: He who sells a ship sells [implicitly] its dugith.19 Raba said: Buzith and dugith are the same: R. Nathan, the Babylonian, called it Buzith, as they say [in Babylon]' the Buziatha20 of Maisan';21 while Symmachus. who was a Palestinian, called it Dugith, for so it is written: And your residue [shall be taken away] in fishing boats.22
Rabbah said: Seafarers told me:23 The wave that sinks a ship appears with a white fringe of fire at its crest, and when stricken with clubs on which is engraven. 'I am that I am,24 Yah, the Lord of Hosts, Amen, Amen, Selah', it subsides,
Rabbah said: Seafarers told me: There is a distance of three hundred parasangs25 between one wave and the other, and the height of the wave is [also] three hundred parasangs. 'Once,' [they related], 'we were on a voyage, and the wave lifted us up so high that we saw the resting place of the smallest star, and there was a flash as if one shot forty arrows of iron;26 and if it had lifted us up still higher. We would have been burned by its heat. And one wave called to the other: "My friend, have you left anything in the world that you did not wash away? I will go and destroy it." The other replied: "Go and see the power of the master [by whose command] I must not pass the sand'[of the shore even as much as] the breadth of a thread"; as it is written: Fear ye not me? saith the Lord; will ye not tremble at my presence? who have placed the sand for the bound of the sea, an everlasting ordinance, which it cannot pass.27
Rabbah28 said: I saw how Hormin29 the son of Lilith30 was running on the parapet31 of the wall of Mahuza, and a rider, galloping below on horseback32 could not overtake him. Once they saddled for him two mules which stood
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(1) Who also, according to the final conclusion arrived at, holds that they are not sanctified.
(2) Resh Lakish had this on tradition from his teacher.
(3) Lit., 'the slaves'.
(4) מרצוף Cf. Gr. **.
(5) To the buyer.
(6) The ship.
(7) The Gemara now proceeds to explain נם ,תרן and עוגין the Hebrew terms used in the Mishnah.
(8) Lit., 'cedar'.
(9) תרן 'mast'. The proof that toren means mast lies in the fact that masts are made from cedars or trees of similar height.
(10) Ezek. XXVII, 5.
(11) Ibid. v. 7. Ensign. Heb. נם The Gemara regards in Ezek. as parallel to מפרש hence sail.
(12) תעגנה, from עגן same root as that of עוגין meaning in Niph. to be shut up, to be held fast. The anchor holds the ship fast in the water.
(13) Ruth I, 13.
(14) I.e., the oars are implicitly sold together with the ship.
(15) Ezek. XXVII, 6. The Scriptural text is describing a ship and gives details of its equipment. Since oars are included in the description they must be regarded as part of the ship's equipment and are, therefore, implicitly sold together with the ship.
(16) Ezek. XXVII, 29. This verse shows the close connection between the oars and the ship. Cf. previous note.
(17) Viz,, its oars, poles, ladders, etc. Heb. Iskela, איסכלא; Rashb. ladders (scalae).
(18) Heb. Buzith, בוצית from ביצה egg shaped, oval (or ביצע marsh), which is attached to the bigger ship, [and into which passengers disembark on nearing the (marshy) shallows (v. Obermeyer. op. cit. pag. 201)].
(19) Heb. Dugith, דוגית (from דוג to fish), which forms part of the equipment of the bigger ship.
(20) Pl. of Buzith
(21) [Maisan (Mesene) the marshland S.E, of Babylonia intersected with shallow streams (v. Obermeyer. ibid.)].
(22) Amos IV, 2. Fishing boats, סירותדוגה 'small boats like pots' (Rashb.).
(23) The following apparent hyperboles are probably allegories on the political and social conditions of the time.
(24) Cf. Ex. III, 14.
(25) V. Glos.
(26) Cf. Kohut, Aruch. s. v. בזק. Current editions read, 'And it was like one scattering forty measures of mustard seeds', or 'and it was of the size of a field needed for forty measures etc.
(27) Jer. V, 22.
(28) Munich MS and others read, Rabbah b. Bar Hana.
(29) Hamburg MS. and others read Hormiz (Ormuzd). Hormin is the name of a demon. Ormuzd, according to Zend Avesta, is the impersonation of the light or the good principle in nature. From the present context it appears that an evil demon is meant.
(30) Lilith, a female night demon.
(31) קופיא Rashb. reads אקופי, 'on the pinnacles'.
(32) Lit., horse, סוסיא Current editions read היותא, animal.on two bridges of the Rognag;1 and he jumped from one to the other, backward and forward,2 holding in his hands two cups of wine, pouring alternately2 from one to the other, and not a drop fell to the ground. [Furthermore]. it was [a stormy] day [such as that on which] they [that go down to the sea in ships] mounted up to the heaven; they went down to the deeps.3 When the government heard [of this] they put him to death.
Rabbah4 said: I saw an antelope. one day old, that was as big as Mount Tabor. (How big is Mount Tabor? - Four parasangs.)5 The length of its neck6 was three parasangs.and the resting place of its head7 was one parasang and a half. It cast a ball of excrement and blocked up the Jordan.
Rabbah b. Bar Hana further stated: I saw a frog the size8 of the Fort of Hagronia. (What is the size of the Fort of Hagronia? - Sixty houses.) There came a snake and swallowed the frog. Then came a raven and swallowed the snake, and perched9 on a tree. Imagine10 how strong was the tree. R. Papa b. Samuel said: Had I not been there I would not have believed it.
Rabbah b. Bar Hana further stated: Once we were travelling on board a ship and saw a fish in whose nostrils a parasite11 had entered.12 Thereupon, the water cast up the fish and threw it upon the shore. Sixty towns were destroyed thereby, sixty towns ate therefrom, and sixty towns salted [the remnants] thereof, and from one of its eyeballs three hundred kegs of oil were filled. On returning after twelve calendar months13 we saw that they were cutting rafters from its skeleton and proceeding to rebuild those towns.
Rabbah b. Bar Hana further stated: Once we were travelling on board a ship and saw a fish whose back was covered with sand out of which grew grass. Thinking it was dry land14 we went up and baked, and cooked, upon its back. When, however, its back was heated it turned, and had not the ship been nearby we should have been drowned.
Rabbah b. Bar Hana further stated: We travelled once on board a ship. and the ship sailed between one fin of the fish and the other for three days and three nights; it [swimming] upwards15 and we [floating] downwards.16 And if you think the ship did not sail fast enough, R. Dimi, when he came, stated that it covered sixty parasangs in the time it takes to warm a kettle of water. When a horseman shot an arrow [the ship] outstripped it. And R. Ashi said: That was one of the small sea monsters17 which have [only] two fins.
Rabbah b. Bar Hana further related: Once we travelled on board a ship and we saw a bird standing up to its ankles in the water while its head reached the sky. We thought the water was not deep18 and wished to go down to cool ourselves, but a Bath Kol19 called out: 'Do not go down here for a carpenter's axe was dropped [into this water] seven years ago and it has not [yet] reached the bottom. And this, not [only] because the water is deep but [also] because it is rapid. R. Ashi said: That [bird] was Ziz-Sadai20 for it is written: And Ziz-Sadai is with me.21
Rabbah b. Bar Hana further related: We were once travelling in the desert and saw geese whose feathers fell out on account of their fatness, and streams of fat flowed under them. I said to them: 'Shall we have a share of your flesh22 in the world to come?'23 One lifted up [its] wing,24 the other lifted up [its] leg.25 When I came before R. Eleazar he said unto me: Israel will be called to account for [the sufferings26 of] these [geese].
(Mnemonic: Like the sand of the purple blue scorpion stirred his basket.)27
Rabbah b. Bar Hana related: We were once travelling in a desert and there joined us an Arab merchant who, [by] taking up sand and smelling it [could] tell which was the way to one place and which was the way to another. We said unto him: 'How far are we from water?' He replied: 'Give me [some] sand.' We gave him, and he said unto us: 'Eight parasangs.' When we gave him again [later]. he told us that we were three parasangs off. I changed it;28 but was unable [to nonplus] him.
He said unto me: 'Come and I will show you the Dead of the Wilderness.'29 I went [with him] and saw them; and they looked as if in a state of exhilaration.
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(1) Name of a river.
(2) Lit., 'from this to that and from that to this'.
(3) Ps. CVII, 26.
(4) V. Glos.
(5) V. glos.
(6) Lit., 'stretching'; i.e., 'when stretched'.
(7) I.e., when resting on the ground.
(8) Lit., 'which was'. (14a) [Outside Nehardea, Obermeyer. p. 265]
(9) Lit., 'and went up (and) sat'.
(10) Lit., 'come and see'.
(11) Lit., 'mud-eater', 'a parasite living on fishes'.
(12) And killed the fish.
(13) Lit., 'months of the year'.
(14) One of the sea islands.
(15) I.e., against the wind.
(16) I.e., sailing with the wind.
(17) Heb. gildana גילדנא a small sea-monster.
(18) Lit., 'there was no water'.
(19) בת קול 'heavenly echo', 'divine voice'; a lower grade of prophecy, v. Glos.
(20) זיז שדי is rendered by the Targum (Ps. L, 11). 'the wild cock whose ankles rest on the ground and whose head reaches the sky'.
(21) Ps. L, 11. 'With me', i.e., 'with God in heaven' is assumed to be an allusion to the bird's head, which reaches the sky.
(22) Lit., 'in you'.
(23) When a feast is to be provided for the righteous.
(24) Indicating that that would be his portion in the world to come.
(25) Lit., 'flank', 'thigh'.
(26) The protracted suffering of the geese caused by their growing fatness is due to Israel's sins which delay the coming of the Messiah, or the era denoted by the expression, 'the world to come'.
(27) The mnemonic is an aid to the memorisation of the following stories told by Rabbah b. bar Hana. Sand refers to the first story where the smelling of sand by the Arab is mentioned. Purple blue occurs in the second story. Scorpion recalls the scorpions round Mount Sinai in the third story, stirred refers to the story of Korah and his sons in Gehenna in the fourth story, and basket is mentioned in the fifth and last story.
(28) Substituted the sand of one place for that of another, in order to put him to the test.
(29) מתי מדבר those Israelites who died during the forty years wanderings in the wilderness, on their way to the Promised Land. Cf. Num. XIV, 32ff.They slept on their backs; and the knee of one of them was raised, and the Arab merchant passed under the knee, riding on a camel with spear erect, and did not touch it. I cut off one corner of the purple-blue shawl1 of one of them; and we could not move away. He said unto me: '[If] you have, peradventure, taken something from them, return it; for we have a tradition that he who takes anything from them cannot move away.' I went and returned it; and then we were able to move away. When I came before the Rabbis they said unto me: Every Abba2 is an ass and every Bar Bar Hana is a fool. For what purpose did you do that?3 Was it in order to ascertain whether [the Law] is in accordance with the [decision of] Beth Shammai or Beth Hillel?4 You should have counted the threads and counted the joints.5
He6 said unto me: 'Come and I will show you Mount Sinai.' [When] I arrived I saw that scorpions7 surrounded it and they stood like white asses. I heard a Bath Kol8 saying: 'Woe is me that I have made an oath9 and now that I have made the oath, who will release me?'10 When I came before the Rabbis, they said unto me: 'Every Abba11 is an ass and every Bar Bar Hana is a fool. You should have said, Mufar lak.'12 He,13 however, thought that perhaps it was the oath in connection with the Flood.14 And the Rabbis?15
If so;16 why, 'woe is me'?
He said unto me: 'Come, I will show you the men of Korah that were swallowed up.17 I saw two cracks that emitted smoke. I took a piece of clipped wool, dipped it in water, attached it to the point of a spear and let it in there. And when I took it out it was singed. [Thereupon] he said unto me: 'Listen attentively [to] what you [are about to] hear.' And I heard them say: 'Moses and his Torah are truth and we18 are liars.' He said unto me: 'Every thirty days Gehenna19 causes them to turn back here as [one turns] flesh in a pot,20 and they say thus: "Moses and his law are truth and we18 are liars".'
He said unto me: 'Come, I will show you where heaven and earth touch one another.'21 I took up my [bread] basket and placed it in a window of heaven. When I concluded my prayers I looked for it but did not find it. I said unto him: 'Are there thieves here?' He replied to me: 'It is the heavenly wheel revolving. Wait here until tomorrow and you will find it.'
R. Johanan related: Once we were travelling on board a ship and we saw a fish that raised its head out of the sea. Its eyes were like two moons, and water streamed from its two nostrils as [from] the two rivers of Sura.22
R. Safra related: Once we travelled on board a ship and we saw a fish that raised its head out of the sea. It had horns on which was engraven: 'I am a minor creature of the sea,I am three hundred parasangs [in length] and I am [now] going into the mouth of Leviathan.'23 R. Ashi said: It was a sea-goat which searches [for its food] and [for that purpose] has horns.
R. Johanan related: Once we were travelling on board a ship and we saw a chest in which were set precious stones and pearls and it was surrounded by a species of fish called Karisa.24 There went down
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(1) תכלתא, viz., the Tallith, טלית, which may signify any garment, cloak or covering, if the Tallith had four corners, a show fringe had to be made in every corner, each fringe containing a thread of purple-blue. Cf. Num. XV. 38; Deut. XXII, 12.
(2) Abba was the name of Rabbah b. Bar Hana; Rabbah equals Rab Abba.
(3) Cutting off the corner of the Tallith.
(4) For the dispute between the two schools on the question of the threads of the show fringes. v. Men. 41b.
(5) Each plaited fringe contains four joints or sections separated by double knots.
(6) I.e., the Arab merchant.
(7) The reading of the current editions, עקרבא וקײמא כי חמרי חיורתי, a mixture of singular and plural, is obviously erroneous. Read with Bomberg ed. עקרבי וקײמן etc.
(8) V. glos.
(9) To send Israel into exile.
(10) Lit., 'who will break [nullify] it for me'.
(11) V. supra n. 2.
(12) מופר לך thy oath, or vow. is void, a formula used by an authorised person for remitting vows and oaths.
(13) Rabbah b. Bar Hana.
(14) That oath was in favour of mankind. Cf. Isa. LIV, 9: For as I have sworn that the waters of Noah shall no more go over the earth etc. Cf. also Gen. IX, 11ff.
(15) Why did they deride Rabbah b. Bar Hana?
(16) If the reference were to the oath of the Flood.
(17) Cf. Num. XVI, 32ff.
(18) Lit., 'and they'.
(19) גיהנם place of punishment for the wicked after death. Originally the name of a glen near Jerusalem, גי הנם where children were burned in the worship of Moloch.
(20) They are stirred in Hell as meat is stirred round and round in a boiling pot.
(21) Lit., 'kiss'.
(22) So Rashb. [Another rendering: 'And water gushed forth from its nostrils at (a height) as (the length) of two Sura-canoes'. i.e., the ferry boats that sailed about in the canal of Sura, v. Obermeyer. op. cit. 292.]
(23) To supply his daily meal. Leviathan, cf. Ps. CIV, 26 and Job XL, 25. In the Talmud, a legendary monster fish reserved for the righteous in the world to come.
(24) Probably, shark.a diver to bring [the chest], but [a fish] noticed [him] and was about to wrench his thigh. Thereupon he poured upon it a skin bottle of vinegar and it sank. A Bath Kol1 came forth, saying unto us: 'What have you to do with the chest of the wife2 of R. Hanina b. Dosa who is to store in it purple-blue3 for the righteous in the world to come.
Rab Judah, the Indian, related: Once we were travelling on board a ship when we saw a precious stone that was surrounded by a snake. A diver descended to bring it up. [Thereupon] the snake approached with the purpose of swallowing the ship, [when] a raven came and bit off its head and the waters were turned into blood. A second snake came, took [the head of the decapitated snake]4 and attached5 it [to the body], and it revived. Again [the snake] approached intent on swallowing the ship. Again a bird came and severed its head. [Thereupon the diver] seized the precious stone and threw it into the ship. We had with us salted birds. [As soon as] we put [the stone] upon them, they took it up and flew away with it.
Our Rabbis taught: It happened that R. Eliezer and R. Joshua were travelling on board a ship. R. Eliezer was sleeping and R. Joshua was awake. R. Joshua shuddered and R. Eliezer awoke. He said unto him: 'What is the matter, Joshua? What has caused you to tremble?' He said unto him: 'I have seen a great light in the sea.' He said unto him: 'You may have seen the eyes of Leviathan, for it is written: His eyes are like the eyelids of the morning.'6
R. Ashi said: R. Huna b. Nathan related to me [the following]: Once we were walking in the desert and we had with us a leg of meat.7 We cut it open and picked out [the forbidden fat8 and the nervus ischiadicus]9 and put it on the grass. While we were fetching wood, the leg regained its original form and we roasted it. When we returned after twelve calendar months10 we saw those coals still glowing. When I came before Ammemar, he said unto me: 'That grass was samtre11 . Those glowing coals were of broom.12
[It is written]: And God created the great sea-monsters.13 Here14 they explained: The sea-gazelles. R. Johanan said: This refers to Leviathan the slant serpent,15 and to Leviathan the tortuous serpent,16 for it is written: In that day the Lord with his sore [and great and strong] sword will punish [Leviathan the slant serpent, and Leviathan the tortuous serpent].17
(Mnemonic: All time Jordan.)18
Rab Judah said in the name of Rab: All that the Holy One, blessed be He, created in his world he created male and female. Likewise, Leviathan the slant serpent and Leviathan the tortuous serpent he created male and female; and had they mated with one another they would have destroyed the whole world.19 What [then] did the Holy One, blessed be He, do? He castrated the male and killed the female preserving it in salt for the righteous in the world to come; for it is written: And he will slay the dragon that is in the sea.20 And also Behemoth21 on a thousand hills were created male and female, and had they mated with one another they would have destroyed the whole world.19 What did the Holy One, blessed be He, do? He castrated the male and cooled22 the female and preserved it for the righteous for the world to come; for it is written: Lo now his strength is in his loins23 - this refers to the male; and his force is in the stays of his body,23 - this refers to the female. There also, [in the case of Leviathan], he should have castrated the male and cooled the female [why then did he kill the female]? - Fishes are dissolute.24 Why did he not reverse the process?25 - If you wish, say: [It is because a] female [fish] preserved in salt is tastier. If you prefer, say: Because it is written: There is Leviathan whom Thou hast formed to sport with,26 and with a female this is not proper.27 Then here also [in the case of Behemoth] he should have preserved the female in salt? - Salted fish is palatable, salted flesh is not.
Rab Judah in the name of Rab further said: At the time when the Holy One, blessed be He, desired to create the world, he said to the angel of the sea: 'Open thy mouth and swallow all the waters of the world.'28 He said unto him: 'Lord of the Universe, it is enough that I remain with my own'. Thereupon, He struck him with His foot and killed him; for it is written: He stirreth up the sea with his power and by his understanding he smiteth through Rahab.29 R. Isaac said: From this it may be inferred that the name of the angel of the sea was Rahab. And had not the waters covered him no creature could have stood his [foul] odour;30 for it is written: They shall not hurt nor destroy in all My Holy mountain etc. as the waters cover the sea.31 Do not read: They cover the sea, but [in the sense]: 'They cover the angel of the sea.'32
Rab Judah further stated in the name of Rab: The Jordan issues from the cavern of Paneas.33 It has been taught likewise:34 The Jordan issues from the cavern of Paneas and passes through the Lake of Sibkay35 and the Lake of Tiberias36 and rolls down into the great sea from whence it rolls on until it rushes into the mouth of Leviathan; for it is said: He is confident because the Jordan rushes forth to his mouth.37 Raba b. 'Ulla objected: This [verse] is written of Behemoth on a thousand hills! - But, said R. Abba b. 'Ulla: When is Behemoth on a thousand hills confident? - When the Jordan rushes into the mouth of Leviathan.38
(Mnemonic: Seas, Gabriel, Hungry.)39
When R. Dimi came40 he stated in the name of R. Johanan: The verse, For he hath founded it upon the seas and established it upon the floods41 speaks of the seven seas and four rivers which surround the land of Israel. And these are the seven seas: The sea of Tiberias,42 the Sea of Sodom, the Sea of Helath,43 the Sea of Hiltha,44 the Sea of Sibkay,45 the Sea of Aspamia and the Great Sea. The following are the four rivers: The Jordan, the Jarmuk, the Keramyon and Pigah.46
When R. Dimi came, he said in the name of R. Jonathan: Gabriel is to arrange in the future
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(1) V. Glos.
(2) A saintly woman who, though very poor, refused to benefit in any way from her portion in the world to come. V. Ta'an. 24b.
(3) V. p. 292, n. 9.
(4) This interpretation is in accordance with the reading of the Munich MS which reads, שקליה לרישיה דתנינא.
(5) Lit., 'and hung'.
(6) Job XLI, 10.
(7) Lit., 'flank' or 'thigh of flesh'.
(8) Cf. Lev. III, 17. VII. 25.
(9) The sinew of the thigh-vein is forbidden food. Cf. Gen. XXXII, 33.
(10) Cf. p. 291, n. 2.
(11) סמתרי an herb with the power of uniting severed parts.
(12) רתם or ריתמא A kind of shrub, growing in deserts. A fire of broom coal is supposed to continue to burn within, while on the surface it is extinguished. Gen. R. XCVIII.
(13) Gen. I, 22.
(14) In Babylonia.
(15) The male Leviathan.
(16) The female.
(17) Isa. XXVII, 2.
(18) The mnemonic aids in the recollection of the three stories told by Rab Judah in the name of Rab. All refers to the first story, beginning 'All that the Holy One'. Time occurs in the second story, 'At the time when'. Jordan begins the third story.
(19) With the multitudes of their progeny.
(20) Ibid. The Talmudic interpretation of the verse is as follows: 'In that day the Lord with his sore and great and strong sword will punish Leviathan the slant serpent, in the world to come, as he punished Leviathan the tortuous serpent; for he slew the dragon that was in the sea, during the first six days of the creation'.
(21) בהמות, Cf. Ps. L, 10. In the Aggada. Behemoth signifies legendary animals, male and female, which, like Leviathan, are to provide part of the feast of the righteous in the world to come. Behemoth eat up daily the grass of a thousand hills.
(22) Others render 'sterilised'.
(23) Job XL, 16. The previous verse speaks of Behemoth.
(24) Cooling would not be effective in preventing their fertility.
(25) Kill the male and preserve the female alive.
(26) Ps. CIV. 26.
(27) Lit., 'way of the earth', Heb. Derek Eretz. דרך ארץ proper manners'.
(28) That the dry land may be seen.
(29) Job XXVI, 12.
(30) That of his dead body.
(31) Isa. XI, 9.
(32) I.e., Sea is to be understood as the angel of the sea.
(33) Paneas written פנײם ,פמײם, and פניאם is the modern Banias, ancient Caesarea Philippi, in the north of Galilee.
(34) Bek. 55a.
(35) Sea of Samachonitis, North of Lake of Tiberias.
(36) Sea of Gennesareth.
(37) Job XL, 23.
(38) So long as Leviathan is alive, Behemoth also is safe.
(39) The mnemonic is an aid to the memorisation of the following three stories told by R. Dimi. Seas refers to the first story dealing with the seven seas. Gabriel is the subject of the second story. Hungry is a reference to the hungry Leviathan in the third story.
(40) From Palestine.
(41) Ps. XXIV. 2.
(42) V. p. 297, n. 14.
(43) Current editions read חילת Bomberg. שחלת, Munich, שחלית, [Probably the Elath Sea, the Gulf of Akaba. V. Press. J., MGWI., 1929. 53.]
(44) Hiltha, Current Editions, חילתא, Munich, חולתא; [Ulatha mentioned in Josephus. Ant. XV, 10, 13. North of the Samachonitis Sea. V. Pressf., ibid. 52].
(45) V. p. 297, n. 13.
(46) Prob, tributaries of the Jordan. [On the identification of these two streams v. Press J.' ibid.].a chase1 of Leviathan; for it is said: Canst thou draw out Leviathan with a fish hook? Or press down his tongue with a cord?2 And if the Holy One, blessed be He, will not help him, he will be unable to prevail over him; for it is said: He only that made him can make His sword to approach unto him.3
When R. Dimi came he said in the name of R. Johanan: When Leviathan is hungry he emits [fiery] breath from his mouth and causes all the waters of the deep to boil; for it is said: He maketh the deep to boil like a pot.4 And if he were not to put his head into the Garden of Eden, no creature could stand his [foul] odour;5 for it is said: He maketh the sea like a spiced6 broth.7 When he is thirsty he makes numerous furrows in the sea; for it is said: He maketh a path to shine after him.8 R. Aha b. Jacob said; The deep does not return to its strength until [after] seventy years; for it is said: One thinks the deep to be hoary,9 and hoary age is not [attained at] less than seventy [years].10
Rabbah said in the name of R. Johanan: The Holy One, blessed be He, will in time to come make a banquet for the righteous from the flesh of Leviathan; for it is said: Companions will make a banquet of it.11 Kerah12 must mean a banquet; for it is said: And he prepared for them a great banquet13 and they ate and drank.14 Companions must mean scholars15 ; for it is said: Thou that dwellest in the gardens, the companions hearken for thy voice; cause me to hear it.16 The rest [of Leviathan] will be distributed and sold out in the markets of Jerusalem; for it is said: They will part him among the Kena'anim,17 and Kena'anim must mean merchants, for it is said: As for kena'an18 the balances of deceit are in his hand, he loveth to oppress.19 And if you wish you may infer it from the following: Whose merchants are princes, whose traffickers20 are the honourable of the earth.21
Rabbah in the name of R. Johanan further stated: The Holy One, blessed be He, will in time to come make a tabernacle for the righteous from the skin of Leviathan; for it is said: Canst thou fill tabernacles with his skin.12 If a man is worthy, a tabernacle is made for him; if he is not worthy [of this] a [mere] covering is made for him, for it is said: And his head with a fish covering.22 If a man is [sufficiently] worthy a covering is made for him; if he is not worthy [even of this], a necklace is made for him, for it is said: And necklaces about thy neck.23 If he is worthy [of it] a necklace is made for him; if he is not worthy [even of this] an amulet is made for him; as it is said: And thou wilt bind him for thy maidens.24 The rest [of Leviathan] will be spread by the Holy One, blessed be He, upon the walls of Jerusalem, and its splendour will shine from one end of the world to the other; as it is said: And nations shall walk at thy light, and kings at the brightness of thy rising.25
[It is written]: And I will make thy pinnacles of kadkod26 - R. Samuel b. Nahmani said: There is a dispute [as to the meaning of kadkod] between two angels in heaven, Gabriel and Michael. Others say: [The dispute is between] two Amoraim in the West.27 And who are they? - Judah and Hezekiah the sons of R. Hiyya. One says: [Kadkod means] onyx; and the other says: Jasper. The Holy One, blessed be He, said unto them: Let it be as this one [says] and as that one.28
And thy gates of carbuncles29 [is to be understood] as R. Johanan [explained] when he [once] sat and gave an exposition: The Holy One, blessed be He, will in time to come bring precious stones and pearls which are thirty [cubits] by thirty and will cut out from them [openings]30 ten [cubits] by twenty, and will set them up in the gates of Jerusalem. A certain student sneered at him: [Jewels] of the size of a dove's egg are not to be found; are [jewels] of such a size to be found? After a time, his ship sailed out to sea [where] he saw ministering angels engaged31 in cutting precious stones and pearls which were thirty [cubits] by thirty and on which were engravings of ten [cubits] by twenty. He said unto them: 'For whom are these?' They replied that the Holy One, blessed be He, would in time to come set them up in the gates of Jerusalem. [When] he came [again] before R. Johanan he said unto him: 'Expound, O my master; it is becoming for you to expound; as you said, so have I seen.' He replied unto him: 'Raca, had you not seen, would not you have believed? You are [then] sneering at the words of the Sages!' He set his eyes on him and [the student] turned into a heap of bones.32
An objection was raised: And I will lead you komamiyuth,33 R. Meir says: [it means] two hundred cubits; twice the height of Adam.34 R. Judah says: A hundred cubits; corresponding to the [height of the] temple35 and its walls. For it is said: We whose sons are as plants grown up in their youth; whose daughters are as corner-pillars carved after the fashion of the Temple.36 R. Johanan speaks only of the ventilation windows.
Rabbah in the name of R. Johanan further stated: The Holy One, blessed be He, will make seven canopies for every righteous man; for it is said: And the Lord will create over the whole habitation of Mount Zion, and over her assemblies, a cloud of smoke by day, and the shining of a flaming fire by night; for over all the glory shall be a canopy.37 This teaches that the Holy One, blessed be He, will make for everyone a canopy corresponding to his rank.38 Why is smoke required in a canopy? - R. Hanina said: Because whosoever is niggardly towards the scholars in this world will have his eyes filled with smoke in the world to come. Why is fire required in a canopy? - R. Hanina said: This teaches that each one will be burned by reason of [his envy of the superior] canopy of his friend. Alas, for such shame! Alas, for such reproach!
In a similar category is the following: And thou shalt put of thy honour upon him,39 but not all thy honour. The elders of that generation said: The countenance of Moses was like that of the sun; the countenance of Joshua was like that of the moon.40 Alas, for such shame! Alas for such reproach!41
R. Hama b. Hanina said: The Holy One, blessed be He, made ten canopies for Adam in the garden of Eden; for it is said: Thou wast in Eden the garden of God; every precious stone [was thy covering, the cornelian, the topaz and the emerald, the beryl, the onyx and the jasper, the sapphire, the carbuncle and the emerald and gold]42 etc. Mar Zutra says: Eleven; for it is said: Every precious stone.43 R. Johanan said: The least of all [these] was gold, since it is mentioned last. What is [implied] by the work of thy timbrels and holes?44 - Rab Judah said in the name of Rab: The Holy One, blessed be He, said to Hiram, the King of Tyre. '[At the creation] I looked upon thee, [observing thy future arrogance]45 and created [therefore] the excretory organs of man'.46 Others say: Thus said [the Holy One, blessed be He].' I looked upon thee
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(1) קניגיא, 'hunt', 'chase'.
(2) Job XL. 25.
(3) Ibid. v. 19. The text speaking of Behemoth is also applicable to Leviathan.
(4) Job XLI, 23.
(5) That of the foul breath.
(6) The sweet odours of the Garden of Eden perfume the sea.
(7) Ibid. 'Spiced broth', כמרקחה, Cf. Ex. XXX, 25, רקח מרקחת 'perfume compounded'.
(8) Job XLI, 24.
(9) Ibid.
(10) Cf. Aboth V. 24.
(11) Job XL, 30.
(12) כירה denominative of כרה root of יכרו the word used in the verse quoted.
(13) כרה.
(14) II Kings VI, 23.
(15) Heb. Talmide Hakamim, תלמידי חכמים lit.. 'disciples of the wise men', applied to scholars, distinguished students. Here taken to be synonymous with the righteous men mentioned previously.
(16) Cant. VIII, 13. The 'companions' are the Talmide Hakamim. The entire Song of Songs is regarded in Talmudic literature as an allegorical poem on God, Israel and the Torah. The gardens are the Colleges. the companions are the scholars. 'Haberim' חברים companions in Cant. is taken to be equal יברים Habbarim in Job.
(17) Job XL. 30. Merchants כנענים
(18) So R.V. margin, reading Canaan. English versions render trafficker.
(19) Hos. XII. 8.
(20) כנעניה; absolute form, כנענים.
(21) Isa. XXIII, 8. (18) Job XL, 31.
(22) Ibid.
(23) Prov. I, 9.
(24) Job XL. 29. Bind, refers to a small object, such as an amulet, which one attaches (binds) to a string.
(25) Isa. LX, 3.
(26) Isa. LIV, 12. Kadkod, כדכד, E.V. 'Rubies.'
(27) Palestine, which is west of Babylon where the Babylonian Talmud was composed.
(28) כדין וכדין a play on the word כדכד.
(29) Ibid.
(30) To serve as entrances to the city.
(31) Lit., 'who sat and cut'.
(32) Cf. Ber. 58a, Shab. 34a, Sanh. 100a.
(33) Lev. XXVI, 13. Heb. קוממיות lit., upright. Here taken as the dual of קומה height.
(34) Heb. אדם הראשון 'Adam the first'. That is, the people will gain in stature to twice the height of Adam. His height, originally from earth to heaven or from one end of the earth to the other, was, after his sin, reduced to a hundred cubits. V. Hag. 22a.
(35) V. supra 3a. cf. Sanh. (Sonc. ed.) 100a.
(36) Ps. CXLIV, 22. How then, in view of their increase to a hundred cubits in height, necessitating correspondingly high gates, can R. Johanan say that the gates were only twenty in height?
(37) Isa. IV, 5.
(38) Lit., 'his honour, glory.'
(39) Num. XXVII, 20.
(40) Joshua's glory was inferior to that of Moses.
(41) That there should be so much deterioration in the course of one generation.
(42) Ezek, XXVIII, 13. The text speaks of Hiram, King of Tyre, who is tauntingly asked whether he could compare himself with Adam who had all these canopies. 'Every precious stone is not included in the number.
(43) Mar Zutra obtains the number eleven by including 'Every precious stone' in the list of materials used for making Adam's canopies.
(44) Ibid.
(45) Cf. Ezek. XXVIII, 2ff, Because thy heart is lifted up, and thou hast said: I am a God, etc.
(46) Lit., 'many holes' or 'orifices', created to curb human pride.and decreed the penalty of death over Adam'.1 What is implied by, and over her assemblies?2 - Rabbah said in the name of R. Johanan: Jerusalem of the world to come will not be like Jerusalem of the present world. [To] Jerusalem of the present world, anyone who wishes goes up, but to that of the world to come only those invited3 will go.
Rabbah in the name of R. Johanan further stated: The righteous will in time to come be called by the name of the Holy One, blessed be He; for it is said: Every one that is called by My name, and whom I have created for My glory. I have formed him, yea, I have made him.4
R. Samuel b. Nahmani said in the name of R. Johanan: Three were called by the name of the Holy One; blessed be He, and they are the following: The righteous, the Messiah and Jerusalem. [This may be inferred as regards] the righteous [from] what has just been said. [As regards] the Messiah - it is written: And this is the name whereby he shall be called, The Lord is our righteousness.5 [As regards] Jerusalem - it is written: It6 shall be eighteen thousand reeds round about; and the name of the city from that day shall be 'the Lord is there.'7 Do not read, 'there' but 'its name'.8
R. Eleazar said: There will come a time when 'Holy' will be said before the righteous as it is said before the Holy One, blessed be He;9 for it is said: And it shall come to pass, that he that is left in Zion, and he that remaineth in Jerusalem, 'shall be called Holy.10
Rabbah in the name of R. Johanan further stated: The Holy One, blessed be He, will in time to come lift up Jerusalem three parasangs high; for it is said: And she shall be lifted up, and be settled in her place.11 'In her place' means 'like her place'.12 Whence is it proved that the space it occupied was three parasangs in extent? - Rabbah said: A certain old man told me, 'I saw ancient13 Jerusalem and it occupied14 [an area of] three parasangs'. And lest you should think the ascent will be painful, it is expressly stated: Who are these that fly as a cloud, and as the doves to their cotes.15 R. Papa said: Hence it may be inferred that a cloud rises three parasangs. R. Hanina b. papa said: The Holy One, blessed be He, wished to give to Jerusalem a [definite] size; for it is said: Then said I 'Whither goest thou?' And he said unto me: 'To measure Jerusalem. to see what is the breadth thereof and what is the length thereof'.16 The ministering angels said before the Holy One, blessed be He, 'Lord of the Universe, many towns for the nations of the earth hast thou created in thy world, and thou didst not fix the measurement of their length or the measurement of their breadth, wilt thou fix a measurement for Jerusalem in the midst of which is Thy Name, Thy sanctuary and the righteous?' Thereupon, [an angel] said unto him: 'Run speak to this young man, saying: Jerusalem shall be inhabited without walls, for the multitude of men and cattle therein'.17
Resh Lakish said: The Holy One, blessed be He, will in time to come add to Jerusalem a thousand18 gardens, a thousand18 towers, a thousand18 palaces and a thousand18 mansions;19 and each [of these] will be as big as Sepphoris in its prosperity. It has been taught: R. Jose said: I saw Sepphoris in its prosperity, and it contained a hundred and eighty thousand markets for pudding20 dealers.
[It is written]: And the side chambers were one over another, three and thirty times.21 What is meant by three and thirty times? - R. Levi in the name of R. Papi in the name of R. Joshua of Siknin22 said: If [in time to come] there will be three Jerusalems,23 each [building] will contain thirty dwellings one over the other; if there will be thirty Jerusalems, each [building] will contain three dwellings one over the other.
It has been stated: [In the case of a ship] - Rab said: [The buyer acquires legal ownership] as soon as he pulled [it],24 however slightly; whereas Samuel said: He cannot become its legal owner until he has pulled its full length.25
Must it be said that [they26 differ on the same principles] as the [following] Tannaim? [For we have learned:]27 How is [the acquisition] by mesirah?28 If [the buyer]29 seizes [the animal] by its hoof, hair, the saddle or the saddle-bag upon it, the bit30 in its mouth, or the bell on its neck, he acquires legal possession. How is [the acquisition] by meshikah?31 If he calls it and it comes, or if he strikes it with a stick and it runs before him, he acquires legal ownership as soon as it has moved a foreleg and a hind leg.32 R. Ahi, some say R. Aha, said: [Not] until it has moved the full length of its body.33
Must it be said that Rab follows34 the first Tanna and Samuel follows R. Aha?35 - Rab can tell you: What I have said [is valid] even according to R. Aha. For his statement ['until it moved etc.'] is applicable only to an animal,36 which, though it has moved a foreleg and a hind leg, remains in the same place;37 but [in the case of] a ship, when a small part of it moves the whole moves. And Samuel can say: What I have said [is valid] even according to the first Tanna. For his statement ['as soon as it has moved, etc.'] is applicable only to an animal;36 for, since one foreleg and one hind leg have been moved, the other legs are on the point of being moved38 but [in the case of a ship] if he pulls it all, he does [acquire possession]; otherwise, [he does] not.39
Must it be said that [they40 differ on the same principles] as the following Tannaim? For it has been taught: A ship is legally acquired by meshikah. R. Nathan said: A ship and letters41 are legally acquired by meshikah42
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(1) 'Timbrels and holes' are taken as an allusion to the grave.
(2) Isa. IV, 5.
(3) מקראיה (root קרא) may mean 'invited guests' as well as 'assemblies'.
(4) Ibid. XLIII, 7.
(5) Jer. XXIII, 6.
(6) Jerusalem.
(7) Ezek. XLVIII, 35.
(8) 'There', Heb. שמה (shemo) 'its name', Heb. שמה The consonants שמה are the same. The relevant text is accordingly to be rendered: And as to the name of the city, from that day, 'The Lord' shall 'be its name.
(9) Cf. Isa. VI, 3. And one called unto another and said: Holy, holy, holy, is the Lord of Hosts,
(10) Isa. IV, 3.
(11) Zech. XIV, 10.
(12) Jerusalem will he lifted up to a height equal to the extent of the space it occupies.
(13) Lit., 'first'.
(14) Lit., 'it was'.
(15) Isa. LX, 8.
(16) Zech. II, 6.
(17) Ibid. 8.
(18) No satisfactory explanation of the peculiar words, שילה ,ליצוי ,קפל ,טפף that occur in the text, seems to be available. Some regard them as numerical symbols: טפף = 169, קפל = 210, ליצוי = 146, שילה = 345. Others take them as corrupt Greek, or Persian terms, corresponding to those in Hebrew that follow them in the text.
(19) טוטפראות may be a corruption of טיטרפליות Gr. **, 'buildings with four gates', 'superior mansions.
(20) ציקי קדרה a dish made of various ingredients such as minced meats and spices mixed with wine.
(21) Ezek. XLI. 6.
(22) [Sogane, modern Suchnin in Galilee, N. of the Battoff plain. Klein, NB. p. 20 ff.]
(23) I.e., if Jerusalem of the time to come will be three times the size of the Present Jerusalem.
(24) Pulling, Heb. meshikah, משיכה is one of the modes of acquiring legal possession. It is performed by drawing the object towards oneself.
(25) The entire ship must be moved from its position. by the buyer, until its farther end touches the spot on which the nearer end had rested.
(26) Rab and Samuel.
(27) Cf. Kid., 22b.
(28) מסירה delivery or harnessing, is, like meshikah (p. 304, n .8), one of the modes of acquiring right of ownership. The buyer takes possession of the animal by performing some act which resembles harnessing or, in the case of other objects, by obtaining full delivery.
(29) At the request of the seller.
(30) פרומביא. Cf. Gr.**.
(31) V. p. 304. n. 8. Small cattle are usually taken possession of by meshikah, larger cattle by mesirah.
(32) Even if the animal has not completely shifted its position.
(33) The four legs must be moved from their position.
(34) In principle.
(35) if so, must Rab's and Samuel's views be regarded as opposed respectively to those of R. Aha and the other Tanna?
(36) Lit., 'living beings'.
(37) The body. resting on the other legs, does not move from its position.
(38) And, in law, are regarded as having already moved.
(39) Because the shifting of part of a ship does not lift the whole ship completely out of its place.
(40) Rab and Samuel.
(41) I.e., a bond, note of indebtedness.
(42) The buyer of the bond acquires legal right to the debt recorded thereon by the meshikah of the bond.
