Babylonian Talmud: Tractate Baba Bathra

Folio 24a

with a path between vineyards; for though [there is ground for saying that] it came from a distance. [because it is more than fifty cubits from a cote],¹  yet here, since it can only hop, it cannot have come from a distant cote, because a bird will only hop away from the cote so long as it can still see the cote on turning round, but no further.

Abaye said: We too know R. Hanina's rule²  from the Mishnah. which says: 'If blood³  is found in the 'anteroom'⁴  and there is any doubt about its character, it is reckoned unclean, because it is presumed to be from the 'source'⁴  — notwithstanding the fact that there is an 'upper chamber'⁴  which is nearer. Said Raba to him: You are speaking of a case where there is 'frequency' as well as 'majority';⁵  where there are both 'frequency' and 'majority' no one questions that they carry more weight than 'nearness'.

R. Hiyya taught:⁶  Blood found in the 'anteroom' renders [the woman] liable [for a sin-offering] if she enters the Sanctuary,⁷  and terumah must be burnt on its account.⁸  Raba remarked: From this statement of R. Hiyya three lessons may be derived. One is [that where we have to choose between] 'majority' and 'nearness', we decide on the ground of 'majority'.⁹  The second is that the rule of 'majority' derives its warrant from the Scripture. The third is that R. Zera was right when he laid down that [in the case of a piece of meat] we decide on the ground of 'majority' even though the town gates are closed,¹⁰  because the case of the woman here is analogous to the case where the town gates are closed,¹¹  and even so we decide on the ground of 'majority'. But was it not Raba himself who said that where 'majority' and 'frequency' were combined no one questioned that they carried more weight than 'nearness' [whereas here he says that 'majority' itself carries more weight]? — Raba retracted the objection he then made to Abaye.

It has been stated: If a barrel of wine is found floating on the river [Euphrates]. Rab says, if it is opposite a town where the majority of the inhabitants are Jews, the wine is permitted, and if opposite a town where the majority of the inhabitants are nonjews. the wine is prohibited. Samuel, however, says that even if it is found opposite a town where the majority of the inhabitants are Jews, it is prohibited, because it may be supposed to have come from Hai di-Kira.¹²  May we say that the ground on which they join issue is the dictum of R. Hanina [that we follow the 'majority' in preference to 'nearness']. Samuel accepting it¹³  and Rab not accepting it?¹⁴  — No: both accept the dictum of R. Hanina. and the ground on which they join issue is this, that in the opinion of Rab. if the barrel had come from Hai di-Kira it would have been sunk or stuck in the bays¹⁵  or shallows¹⁶  of the river, whereas Samuel thinks that it can have been carried along by the force of the stream.

A barrel of wine [which had been stolen] was found in a vineyard which was 'uncircumcised',¹⁷  and Rabina permitted the wine to be drunk. Shall we say it was because he held with R. Hanina?¹⁸ — There was a different reason in that case, viz., that if the wine had been stolen from that vineyard it would not have been hidden there. This, however, applies only to wine, but [stolen] grapes might be hidden [in the same vineyard].

A number of flasks of wine were found between trunks of vines¹⁹  [of a Jew] and Raba permitted the wine to be drunk.²⁰  Shall we say that he did not hold with R. Hanina?²¹  — There was a different reason in that case, viz, that most

1. The vines having enabled it to hop further than it would otherwise be able to do.
2. That 'majority' is the decisive factor.
3. The reference is to a woman who finds on her body blood which may be either the blood of childbirth, and therefore clean, or the blood of an issue and therefore unclean. V. Lev. XV. 25.
4. For an explanation of these terms. v. Niddah, ad init.
5. I.e., although the blood might have come from the 'upper chamber' which is nearer, we yet presume it to have come from the 'source' where there is more blood and whence blood more frequently flows.
6. Reading [H] v. Tosaf.
7. Before due purification, because it is certainly unclean.
8. I.e., if the woman touched the terumah in this unclean state.
9. Since if we decided that the blood belongs to that category to which it is nearest, it would not render the woman liable to a sin-offering nor necessitate the burning of terumah.
10. If there are ten butchers' shops in a town of which nine sell 'kosher' meat and the tenth 'trefa', then if a piece of meat is found near the one which sells 'trefa' meat we still say, on the ground of 'majority', it is 'kosher', and this (R. Zera maintains) not only if the town gates are open so that there is a possibility of it having been brought in by Jews from outside, forming a 'majority', but even if they are closed, i.e., even if there is only one 'majority' and not two.
11. In the fact that there is only one 'majority'. viz. that the 'majority' of blood emanates from the source; v. Keth. 15a.
12. [Ihi di-Kira, the modern Hit (v. Obermeyer, Die Landschaft Babylonien, 59ff.). A town in the North of Babylonia which was outside the Jewish settlement.]
13. And so this barrel is prohibited. because most barrels are from non-Jews.
14. And this barrel is permitted because it is near a Jewish town.
15. Formed by protruding rocks.
16. Formed by melting snows. This is Rashi's explanation. Others render 'bends and inlets', v. Aruch.
17. I.e., had been planted less than three years. V. Lev. XIX. 23.
18. And most wine is from vineyards of more than four years' standing.
19. [ [H] or 'at Be Kufai', a village 4 parasangs west of Bagdad; v. Obermeyer; p. 267.]
20. As being presumably Jewish and not Gentile wine.
21. Deciding according to 'nearness' and not 'majority'.

wine-bottlers were Jews.¹  And we only say this if the flasks are big ones,²  but if they are small ones, we may argue that passers-by [non-Jews] let them drop. If, however, there are some big ones with them. we can say that the small ones were [merely] used as ballast.³

MISHNAH. TREES MUST BE KEPT AT A DISTANCE OF TWENTY-FIVE CUBITS FROM A TOWN; CAROBS AND SYCAMORE TREES⁴  FIFTY CUBITS. ABBA SAUL SAYS THAT ALL WILD FRUIT TREES⁵  MUST BE KEPT AT A DISTANCE OF FIFTY CUBITS. IF THE TOWN WAS THERE FIRST, THE TREE IS CUT DOWN⁶  AND NO COMPENSATION IS GIVEN. IF THE TREE WAS THERE FIRST, IT IS CUT DOWN BUT COMPENSATION MUST BE GIVEN. IF THERE IS A DOUBT WHICH WAS FIRST, IT IS CUT DOWN AND NO COMPENSATION IS GIVEN.

GEMARA. [TREES MUST BE KEPT AT A DISTANCE etc.] What is the reason for this regulation? — 'Ulla says. to preserve the amenities of the town.⁷  But could we not derive this rule from the regulation⁸  that suburb⁹  must not be turned into cultivated field nor cultivated field into suburb? — The rule had to be stated here to meet the view of R. Eleazar, who said that cultivated field may be turned into suburb, and suburb may be turned into cultivated field; even on his view trees must not be planted [close to the town], so as not to spoil the amenities of the town. And the Rabbis too who said that a cultivated field may not be turned into suburb nor suburb into cultivated field, meant this to apply only to the sowing of vegetables but not to the planting of trees; yet here they too would prohibit on account of the amenities of the town. What ground have you for saying that there is a difference [in this respect] between vegetables and trees? — Because it has been taught: 'If an enclosure, big enough to sow more than two se'ahs in, is fenced round for dwelling purposes, then if the greater part of it is sown with vegetables, it is reckoned as a vegetable garden and it is forbidden [to carry in it on Sabbath], but if the greater part of it is planted with trees it is reckoned as a courtyard and it is permissible [to carry in it on Sabbath].¹⁰

IF THE TOWN WAS THERE FIRST, THE TREE IS CUT DOWN AND NO COMPENSATION IS GIVEN etc. Why in the analogous case of a pit is it laid down¹¹  that the owner may cut down the tree but must give compensation, whereas here it is cut down without compensation being given? — R. Kahana said: A pot with two cooks¹²  is neither hot nor cold.¹³  But what contradiction is there? perhaps a difference is made between injury to the public and injury to an individual?¹⁴  — [We must therefore say that] if R. Kahana really made this remark, he meant it to apply to the next clause in the Mishnah: IF THE TREE WAS THERE FIRST, IT IS CUT DOWN BUT COMPENSATION MUST BE GIVEN [Regarding this we may ask.] Why cannot the owner of the tree say: Give me the money first and I will then cut it down? And it was in regard to this that R. Kahana answered: A pot with two cooks is neither hot nor cold.

IF THERE IS A DOUBT WHICH WAS FIRST, IT IS CUT DOWN WITHOUT COMPENSATION BEING GIVEN. Why in the analogous case of a pit is it laid down that he should not cut down the tree?¹⁵  — In the case of the pit where, if the tree was certainly [there first]. it is not to be cut down, then if there is a doubt we also do not say to him 'Cut it down.' But in this case where even if the tree was certainly there first it has to be cut down, then if there is a doubt we also order him to 'Cut it down.'¹⁶  And if the question of compensation arises, we say to him: prove that it is yours¹⁷  and you will be paid.

MISHNAH. A FIXED THRESHING-FLOOR MUST BE KEPT FIFTY CUBITS FROM A TOWN.¹⁸  A MAN SHOULD NOT FIX A THRESHING-FLOOR ON HIS OWN ESTATE UNLESS THERE IS A CLEAR SPACE ALL ROUND OF FIFTY CUBITS. HE MUST KEEP IT AWAY FROM THE PLANTATION OF HIS NEIGHBOUR AND HIS PLOUGHED FALLOW A SUFFICIENT DISTANCE TO PREVENT DAMAGE BEING CAUSED.¹⁹

GEMARA. Why this difference between the beginning and the end [of this Mishnah]?²⁰  — Abaye said: The last clause refers to a threshing-floor which is not fixed. What do you mean by a threshing-floor which is not fixed? — R. Jose said in the name of R. Hanina: One that does not require the use of a winnowing shovel.²¹  R. Ashi [however], said: The last clause gives the reason for the first,²²  as much as to say: Why is a fixed threshing-floor kept fifty cubits away from a town? — To prevent it doing damage.

An objection [to Abaye's opinion] was raised from the following: 'A fixed threshing-floor must be kept fifty cubits away from a town, and as it must be kept fifty cubits from a town, so it must be kept fifty cubits from a neighbour's cucumber and pumpkin fields, from his plantations and his ploughed fallow, to prevent damage being caused.' This squares with the opinion of R. Ashi, but conflicts with that of Abaye²³  [does it not]? — [This indeed] is a difficulty. We can understand [why the threshing-floor must be kept away] from the cucumber and pumpkin fields, because the dust goes and penetrates into them and dries them up but [why should it be kept away] from the ploughed fallow? — R. Abba b. Zebid [or it may be R. Abba b. Zutra] replied:

1. And therefore the flasks were probably left there by Jews.
2. And so evidently for sale.
3. To balance the panniers of the baggage asses.
4. Which are very leafy.
5. I.e., trees not usually planted in orchards.
6. Lit., 'He cuts it'. to be taken impersonally, and denoting the townsmen who have to pay the compensation.
7. So as to leave a clear space outside the wall.
8. 'Ar. 33b.
9. Or 'open space'. Cf. Num. XXXV, 4.
10. 'Er. 23b. This shows that vegetables turn ground into a 'field', but trees do not.
11. V. infra 25b.
12. Lit., 'partners'.
13. If therefore compensation is to be given. every resident in the town will wait for some other to make the first move, and the eyesore will remain. V. Tosaf. s.v. [H].
14. The former kind being regarded more seriously.
15. V. infra 25b.
16. I.e., in each case the rule where there is a doubt is the same as the rule where there is no doubt whether the tree was there first.
17. I.e., that your tree was there first.
18. On account of the chaff which flies about.
19. This distance being presumably less than fifty cubits. Hence this rule apparently contradicts the preceding clause.
20. V. note I.
21. I.e., where only a small heap is placed which is winnowed by the wind itself without being lifted by a shovel.
22. And the distance required there also is fifty cubits.
23. Because it shows that there is no reason to take the last clause of the Mishnah, despite the phrase to prevent damage being caused', as referring to a threshing-floor which is not fixed (v. Tosaf.).