Babylonian Talmud: Tractate Baba Mezi'a

Baba Mezi'a 118a

THEY ARE BECOME YOURS,¹  HE IS NOT HEEDED. [ON THE OTHER HAND,] IF AFTER THE LATTER AGREED [TO THE PROPOSAL [AND REMOVED THEM] HE SAID, 'HERE ARE YOUR [REMOVAL] EXPENSES, AND I WILL TAKE BACK MINE [THE STONES].' HE IS [LIKEWISE] NOT HEEDED. IF A MAN ENGAGES A LABOURER TO WORK FOR HIM ON STRAW OR STRUBBLE,²  AND WHEN HE DEMANDS HIS WAGES, SAYS TO HIM, 'TAKE THE RESULTS OF YOUR LABOUR FOR YOUR WAGE, HE IS NOT HEEDED. IF AFTER HE AGREED [TO THE PROPOSAL] HE SAID TO HIM, 'HERE IS YOUR PAYMENT, AND I WILL TAKE MY PROPERTY,' HE IS [LIKEWISE] NOT HEEDED.

GEMARA. BROKEN THROUGH: Rab said, The greater part thereof; Samuel ruled, Four [handbreadths]. 'Rab said, The greater part thereof;' but if only four [handbreadths,] one can sow partly above and partly below.³  'Samuel said, Four [handbreadths]:' one cannot [be expected to] sow partly above and partly below. Now, both [disputes] are necessary.⁴  For if we taught [it] in connection with a dwelling, [it might be said that] only there does Samuel state his ruling, because it is unusual for a man to dwell partly in one place and partly in another; but with respect to sowing, where it is quite usual for a man to sow here a little and there a little, I might say that he agrees with Rab. Whilst if only the present dispute were stated, [I might argue that] only here does Rab hold this view; but in the other case, he agrees with Samuel. Hence both are necessary.

IF HE WAS GIVEN A [FIXED] TIME. And what time is given by the Court? — Said R. Johanan: Thirty days.

IF A MAN'S WALL etc. But since the last clause teaches, 'HERE ARE YOUR [REMOVAL] EXPENSES,' it follows that he [the garden owner] has removed them. Thus, it is only because he removed them;⁵  but why so? Let his field effect possession for him! For R. Jose son of R. Hanina said: A man's courtyard effects possession for him even without his knowledge! — That is only where he [the original owner] desires to grant him possession; but here he merely seeks to evade him.⁶

IF A MAN ENGAGES A LABOURER TO WORK WITH HIM ON STRAW etc. Now, both are necessary. For if only the first were stated, that when he proposes, 'LET THEM BE YOURS', HE IS NOT HEEDED, [it might be said that] that is because he [the garden owner] has no wage claim upon him; here, however, that he [the labourer] has a wage claim, I might argue that he [the employer] is listened to, because it is proverbial, 'From your debtor accept [even] bran in payment.' Whilst if this clause [alone] were taught, [it might be that] only in this case, once he [the worker] accepts the proposal, is he [the employer] not heeded,⁷  because he has a wage claim upon him;⁸  but in the former case, where he has no wage claim upon him, I might think that he is heeded:⁹  hence both are necessary.

HE IS NOT HEEDED.¹⁰  But has it not been taught. He is heeded? — Said R. Nahman: There is no difficulty: here [in the Mishnah] the reference is to his own work, there [in the Baraitha], to his neighbour's.¹¹  Raba said to R. Nahman: [When he is employed] on his own, what is the reason [that he is not heeded]? Because he [the labourer] can say to him, 'You are responsible for my wages'? [But when employed] by his neighbour he can also say to him, 'You are responsible for my hire'! For it has been taught: If one engaged an artisan to labour on his [work], but directed him to his neighbour's, he must pay him in full, and receive from the owner [of the work actually done] the value of the labour whereby he benefited! — But, said R. Nahman, there is no difficulty: here it refers to his own; there, to that of hefker.¹²  Raba raised an objection against R. Nahman: That which is found by a labourer [whilst working for another] belongs to himself. When is that? If the employer had instructed him, 'Weed or dig for me to — day.' But if he said to him. 'Work for me to-day' [without specifying the nature of the work], his findings belong to the employer!¹³  — But, said R. Nahman, there is no difficulty: here [in the Mishnah] the reference is to lifting up; there, to watching.¹⁴

Rabbah said: [Whether] 'watching' [effects possession] in the case of hefker is disputed by Tannaim. For we learnt: Those who keep guard over the aftergrowth of the Sabbatical year are paid out of Temple funds.¹⁵  R. Jose said: He who wishes can donate [his work] and be an unpaid watcher. Said they [the Sages] to him: You say so, [but then] they are not provided by the public.¹⁶  Now, surely, the dispute is on this question: the first Tanna holds that 'watching' hefker effects possession;¹⁷  hence, if he is paid, it is well,¹⁸  but not otherwise. Whilst R. Jose maintains that 'watching' does not effect possession of hefker; hence, only when the community go and fetch it is possession effected. And what is meant by. 'You say [etc.]'?¹⁹  They said thus to him: From your statement²⁰  [and] on the basis of our ruling,²¹  [it transpires that] the omer²²  and the two loaves²³  are not provided by the public!²⁴  — Said Raba: That is not so. All agree that 'watching' effects possession of hefker; but they differ here as to whether we fear that he will not deliver it whole-heartedly. Thus, the Rabbis hold that he must be paid, for otherwise there is the fear lest he does not deliver it wholeheartedly,²⁵  whilst R. Jose holds that this fear is not entertained. And what is meant by 'You say'? — They say thus to him: From your statement, [and] on the basis of our ruling that we fear that it will not be surrendered whole-heartedly, the 'omer and the two loaves are not provided by the public.

Others say, Raba said: All agree that 'watching' does not effect possession in the case of hefker; but they dispute here whether we entertain a fear of violent men. The first Tanna holds that the Rabbis enacted that he shall be paid four zuz, so that violent men may hear thereof²⁶  and hold aloof;²⁷  whilst R. Jose holds that they did not enact [thus].²⁸

1. 'Remove them yourself, and keep them for your trouble.'
2. E.g., to collect or tie it into bundles.
3. I.e., the garden-owner can only demand an equivalent space in the press, but not transplant his whole garden thither.
4. V. supra 116b, where Rab and Samuel dispute likewise with reference to a house.
5. That they belong to the garden owner.
6. He does not really wish the garden owner to have the bricks, but seeks to evade his responsibilities by telling him to clear them away and keep them for himself, thinking, however, to claim them subsequently. Therefore, unless the latter actually takes advantage of the offer, the bricks remain his.
7. When he desires to go back upon it.
8. And therefore has a strong title to the materials, since they were offered in lieu of wages.
9. When desiring to cancel his accepted proposal.
10. When he offers the workman the material in lieu of wages.
11. If the labourer was employed to work for a third party, he can be forced to accept the materials in lieu of wages.
12. V. Glos. R. Nahman maintains (supra 10a) that if a person lifts up an object of hefker on his neighbour's behalf, it belongs to himself. Hence, when a worker collects sheaves of hefker for an employer, they belong to himself, and therefore the offer must be accepted.
13. V. supra 10a.
14. Lit., 'looking'. In both instances the reference is to hefker. But if the labourer was engaged to tie sheaves, thus having to lift them up, his employer acquires title to them, and therefore must pay him. But if his work was to keep guard, the mere watching does not effect possession, and therefore his employer can force him to accept them as his wages.
15. Lit., 'the terumah of the Chamber', i.e., the funds contributed by shekel payers.
16. A sheaf of the earliest barley crop was brought as a heave offering in the Temple; likewise two loaves made of the first wheat to ripen (Lev. XXIII. 10f. 17). These had to be public property, and not that of any individual, and men were engaged and paid out of public funds to watch over a field of corn to see which sheaves ripened the earliest. As there was no sowing in the seventh year, there could only be a crop spontaneously grown from seed that had fallen the previous year. This crop was hefker, as all seventh year crops were, and the Tannaim dispute whether the watchman had to accept payment or not.
17. The aftergrowth thus belong to the watchman.
18. For then possession is effected on behalf of the public.
19. Seeing that according to R. Jose the sheaves are not the property of the watcher.
20. That he may forego payment.
21. That watching gives a title to hefker.
22. Sheaf of barley. Lev. XXIII. 9ff.
23. Made of the new wheat, ibid. 16ff.
24. We thus see that the question whether 'watching' effects possession in hefker is a point of issue between Tannaim.
25. And if it is not surrendered whole-heartedly, it belongs to the watchman, and is thus not provided by the public.
26. That it is being watched on behalf of hekdesh.
27. Otherwise, they may think that he is watching it on his own behalf and seize it themselves; for though they respect the rights of hekdesh, they will not respect those of a private individual.
28. The fear being groundless.

And what is meant by 'You say'? They say thus to him: From your statement,[and] on the basis of our opinion, [it follows that] they are not provided by the public.¹  And when Rabin came,²  he likewise said in R. Johanan's name: They differ as to whether we fear [the action of] men of violence.

MISHNAH. IF A MAN TAKES OUT MANURE INTO A PUBLIC THOROUGHFARE, IT MUST BE APPLIED [TO THE SOIL] IMMEDIATELY AFTER BEING TAKEN OUT.³  MORTAR MUST NOT BE STEEPED IN THE STREET, NOR MAY BRICKS BE FORMED THERE.⁴  CLAY MAY BE KNEADED IN THE STREET.⁵  BUT BRICKS MAY NOT BE [MOULDED]. WHEN ONE IS BUILDING IN A PUBLIC ROAD,⁶  THE BRICKS MUST BE LAID IMMEDIATELY THEY ARE BROUGHT.⁷  IF HE CAUSES DAMAGE, HE MUST MAKE IT GOOD. RABBAN SIMEON B. GAMALIEL SAID: ONE MAY PREPARE HIS MATERIALS EVEN THIRTY DAYS BEFOREHAND.⁸

GEMARA. Shall we say that our Mishnah does not agree with R. Judah? For it has been taught: R. Judah said: When it is the time for manure to be taken out, a man may put his manure out into the street and leave it heaped up for full thirty days, that it should be trodden down by the foot of man and beast for on this condition did Joshua allot the Land to Israel!⁹  — It may even agree with R. Judah, for he admits that if he thereby causes damage, he must make it good.¹⁰  But have we not learned: R. Judah said: In the case of a Chanukah¹¹  lamp he is not liable, because this was done under authority.¹²  Surely that means, under authority of the Court?¹³  — No. It means the authority of a precept.¹⁴  But it has been taught: All those whom the Rabbis permitted to commit a nuisance on the public thoroughfare,¹⁵  if they cause damage, they are bound to pay; whilst R. Judah exempts them! Hence it is clear that our Mishnah does not agree with R. Judah.

Abaye said: R. Judah, Rabban Simeon b. Gamaliel, and R. Simeon¹⁶  all maintain that wherever the Sages gave permission [to do a certain thing] and damage was thereby caused, there is no liability. 'R. Judah', as stated. 'Rabban Simeon b. Gamaliel', — for we learnt: ONE MAY PREPARE HIS MATERIALS EVEN THIRTY DAYS BEFOREHAND.¹⁷  'R. Simeon', — for we learnt: If he placed it [a stove] in an upper storey, there must be a flooring¹⁸  of three handbreadths deep under it;¹⁹  but for a small stove,²⁰  one handbreadth.²¹  Nevertheless, if he causes damage, he must make it good. R. Simeon said: All these measurements were stated only so that if he causes damage he is free from liability.²²

Our Rabbis taught: Once the quarryman has delivered [the stones for building] to the chiseller [for polishing and smoothing], the latter is responsible [for any damage caused by them]; the chiseller having delivered them to the haulier, the latter is responsible; the haulier having delivered them to the porter,²³  the latter is responsible; the porter having delivered them to the bricklayer, the latter is responsible; the bricklayer having handed them over to the foreman,²⁴  the foreman is liable. But if after he had [exactly]²⁵  laid the stone upon the row, it caused damage, all are responsible. But has it not been taught: Only the last is responsible, whilst all the others are exempt? — There is no difficulty: the latter refers to time-work;²⁶  the former, to contracting.²⁷

MISHNAH. IF TWO GARDENS ARE SITUATED ONE ABOVE THE OTHER, AND VEGETABLES GROW BETWEEN THEM,²⁸  R. MEIR SAID: THEY BELONG TO THE UPPER GARDEN; R. JUDAH MAINTAINED, TO THE LOWER GARDEN. SAID R. MEIR: SHOULD THE OWNER OF THE UPPER GARDEN WISH TO REMOVE HIS GARDEN [I.E., TAKE AWAY THE EARTH], THERE WOULD BE NO VEGETABLES. SAID R. JUDAH: SHOULD THE LOWER ONE WISH TO FILL UP HIS GARDEN [WITH SOIL],²⁹  THERE WOULD BE NO VEGETABLES. THEN, SAID R. MEIR, SINCE BOTH CAN PREVENT EACH OTHER [FROM HAVING VEGETABLES AT ALL], WE CONSIDER WHENCE THE VEGETABLES DRAW THEIR SUSTENANCE.³⁰  R. SIMEON SAID: AS FAR AS [THE OWNER OF] THE UPPER GARDEN CAN STRETCH OUT HIS HAND AND TAKE BELONGS TO HIM, WHILST THE REST BELONGS TO [THE OWNER OF] THE LOWER GARDEN.

GEMARA. Raba said: As for the roots, all agree that they belong to the upper owner. They disagree only with respect to the leaves:³¹  R. Meir maintains: The leaves are counted with³²  the roots; whilst R. Judah holds that they are not. Now, they follow their views [expressed elsewhere]. For it has been taught: That which issues from the trunk and the roots belongs to the landowner: this is R. Meir's opinion. R. Judah said: [That which grows] out of the trunk belongs to the tree-owner; out of the roots, to the land-owner.³³

1. On this version this phrase has not the same meaning as above. The 'omer and the two loaves certainly come from the public, since it is now assumed that watching over hefker does not effect a title. But the Rabbis objected that since it was enacted that the watcher must receive four zuz, if he foregoes it and it goes into the public funds, these now include four zuz of private money, and when later on animals are bought therewith for communal sacrifices, such as the daily burnt offerings and the Sabbath and Festival Additional offerings, instead of being paid for by public funds, as they should be, they are partly paid for by private money (Rashi.)
2. From Palestine to Babylon.
3. Lit., 'the carrier carries it out, and he who applies it must apply it' — i.e., it may not be left in the street for any length of time, but must be taken straight to the fields.
4. Rashi: the clay was run into moulds and allowed to dry and harden into bricks. This may not be done in a public thoroughfare.
5. For immediate use.
6. I.e., a building coming up to the street, so that the materials etc. must be in the street.
7. Lit., 'the brick hauler brings them and the builder builds them (into the wall)' — i.e., they must not lie in the street longer than is absolutely necessary.
8. I.e., deposit them on the site, in readiness for building; and during this time he is not responsible for any damage that may ensue.
9. V. B.K. 30a and 81b.
10. Notwithstanding that he was entitled to have it there.
11. V. Glos.
12. If one placed a light outside his house and a camel passed by laden with flax, which caught fire from the light, he is liable for the damage. But if it was a Chanukah lamp, he is exempt; V. B.K. 30a, and 62b.
13. Thus shewing that one is not responsible for damage caused by his property in a public thoroughfare, if it is there by permission of the Court.
14. Which stands higher, but not that of the court or general authorities, which is insufficient to exempt him from his liabilities.
15. E.g., to put out the manure, as here, or discharge foul water in winter.
16. b. Yohai.
17. V. p. 673. n. 5.
18. [H], v. p. 662, n. 2.
19. Otherwise it can cause damage to the lower storey.
20. Just large enough for two pots.
21. Because it does not give out so much heat.
22. B.B. 20b.
23. Who handed them to the bricklayer.
24. For exact setting. After the stones were placed in a row, there was a foreman or supervisor who saw that they were correctly placed, and remedied faulty placing (Rashi).
25. [The text is uncertain (v. D.S.), but this seems to be the correct interpretation according to the reading in cur. edd.; on variants in the parallel passages. V. Krauss, TA. I, 302.]
26. Lit., 'hiring'. i.e., men engaged by the week, day or hour. In that case, each is quit of responsibility as soon as it leaves his hand, and so the final responsibility is left with the last.
27. If they jointly contracted for the building. In that case, each is severally responsible whilst the stone is in his hand; but when it is laid, the joint responsibility is reassumed.
28. I.e., they are contiguous, but one is on a higher level than the other, and vegetables grow on the connecting bank.
29. To make it level with the higher one.
30. And this determines their ownership.
31. Which are suspended in the air-space above the lower garden.
32. Lit., 'thrown after'.
33. The reference is to the offshoots of a tree which does not belong to the same owner as the field in which it is situated, v. B.B. 81a.