Babylonian Talmud: Tractate Baba Bathra

Folio 4a

He placed on his head a garland of hedgehog bristles and put out his eyes. One day he came and sat before him and said: See, Sir, what this wicked slave [Herod] does. What do you want me to do to him, replied Baba b. Buta. He said: I want you to curse him. He replied with the verse, Even in thy thoughts thou shouldst not curse a king.¹  Said Herod to him: But this is no king. He replied: Even though he be only a rich man, it is written, And in thy bedchamber do not curse the rich;²  and be he no more than a prince, it is written, A prince among thy people thou shalt not curse.³  Said Herod to him: This applies only to one who acts as one of 'thy people', but this man does not act as one of thy people. He said: I am afraid of him. But, said Herod, there is no-one who can go and tell him, since we two are quite alone.⁴  He replied: For a bird of the heaven shall carry the voice and that which hath wings shall tell the matter.⁵  Herod then said: I am Herod. Had I known that the Rabbis were so circumspect, I should not have killed them. Now tell me what amends I can make. He replied: As you have extinguished the light of the world, [for so the Rabbis are called] as it is written, For the commandment is a light and the Torah a lamp,⁶  go now and attend to the light of the world [which is the Temple, of which] it is written, And all the nations become enlightened by it.⁷  Some report that Baba b. Buta answered him thus: As you have blinded the eye of the world, [for so the Rabbis are called] as it is written, if it be done unwittingly by the eyes of the congregation,⁸  go now and attend to the eye of the world, [which is the Temple] as it is written, I will profane my sanctuary, the pride of your power, the delight of your eyes.⁹  Herod replied: I am afraid of the Government [of Rome]. He said: Send an envoy, and let him take a year on the way and stay in Rome a year and take a year coming back, and in the meantime you can pull down the Temple and rebuild it. He did so, and received the following message [from Rome]: If you have not yet pulled it down, do not do so; if you have pulled it down, do not rebuild it; if you have pulled it down and already rebuilt it, you are one of those bad servants who do first and ask permission afterwards. Though you strut with your sword, your genealogy¹⁰  is here; [we know] you are neither a reka¹¹  nor the son of a reka, but Herod the slave who has made himself a freedman. What is the meaning of reka? — It means royalty, as it is written, I am this day rak¹²  and anointed king.¹³  Or if you like, I can derive the meaning from this verse, And they cried before him, Abrek.¹⁴

It used to be said: He who has not seen the Temple of Herod has never seen a beautiful building. Of what did he build it? Rabbah said: Of yellow and white marble. Some say, of blue, yellow and white marble. Alternate rows [of the stones] projected,¹⁵  so as to leave a place for cement. He originally intended to cover it with gold, but the Rabbis advised him not to, since it was more beautiful as it was, looking like the waves of the sea.

How came Baba b. Buta to do this [to give advice to Herod], seeing that Rab Judah has said in the name of Rab (or it may be R. Joshuah b. Levi) that Daniel was punished only because he gave advice to Nebuchadnezzar, as it is written, Wherefore, O king, let my counsel be acceptable unto thee, and atone thy sins by righteousness and thine iniquities by showing mercy to the poor, if there may be a lengthening of thy tranquility etc.,¹⁶  and again, All this came upon the king Nebuchadnezzar,¹⁷  and again, At the end of twelve months etc.?¹⁸  — If you like I can say that this does not apply to a slave [of an Israelite, such as Herod was.] who is under obligation to keep the commandments [of the Torah], or if you like I can say that an exception had to be made in the case of the Temple which could not have been built without the assistance of Royalty.

From whence do we learn that Daniel was punished? Shall I say from the verse, And Esther called to Hatach,¹⁹  who, as Rab has told us, was the same as Daniel? This is a sufficient answer if we accept the view of those who say that he was called Hatach because he was cut down [hatach] from his greatness.²⁰  But on the view of those who say that he was called Hatach because all matters of state were decided²¹  [hatach] according to his counsel, what answer can we give? — That he was thrown Into the den of lions.

ALL ACCORDING TO THE CUSTOM OF THE DISTRICT. What further implication is conveyed by the word 'ALL'?²²  — That we include places where fences are made of palm branches and branches of bay trees.

THEREFORE IF THE WALL FALLS, THE PLACE AND THE STONES BELONG TO BOTH. Surely this is self-evident? — It required to be stated in view of the case where the wall has fallen entirely into the property of one of them, or where one of them has cleared all the stones Into his own part. You might think that in that case the onus probandi falls on the other as claimant. Now we know [that this is not so].

SIMILARLY IN AN ORCHARD, IN A PLACE WHERE IT IS CUSTOMARY TO FENCE OFF. The text itself seems here to contain a contradiction. You first say, SIMILARLY IN AN ORCHARD, IN A PLACE WHERE IT IS CUSTOMARY TO FENCE OFF, EITHER CAN BE COMPELLED, from which I infer that in an ordinary²³  [orchard] he cannot be compelled to fence off. Now see the next clause: BUT IN A STRETCH OF FIELDS, IN A PLACE WHERE IT IS USUAL NOT TO FENCE OFF, NEITHER CAN BE COMPELLED, from which I infer that in an ordinary²³  [stretch] he can be compelled. Now if you say that he cannot be compelled in an ordinary orchard, do we require to be told that he cannot be compelled in an ordinary stretch of fields?²⁴  — Abaye replied: We must read the Mishnah thus: 'Similarly with an ordinary orchard:²³  and also where it is customary to put fences in a stretch of fields, he can be compelled.'²⁵  Said Raba to him: If that is the meaning, what are we to make of the word BUT?²⁶  No, said Raba; we must read the Mishnah thus: 'Similarly with an ordinary orchard, which is regarded as a place where it is customary to make a fence, and he can be compelled: but an ordinary stretch of cornfields is regarded as a place where it is not customary to make a fence, and he is not compelled.'

IF, HOWEVER, ONE DESIRES TO MAKE A FENCE, HE MUST WITHDRAW A LITTLE AND BUILD ON HIS OWN GROUND, MAKING A FACING. How does he make a facing? — R. Huna says: He bends the edge over towards the outer side. Why should he not make it on the inner side?²⁷  — Because then his neighbour may make another one on the outer side²⁸  and say that the wall belongs to both of them.²⁹  If he can do that, then even if the ledge is on the outer side he can cut it off and say that the wall belongs to both? — Breaking off would be noticeable.

According to another version, R. Huna said: He bends the edge over on the inner side. Why should he not bend it over on the outer side? — His neighbour may break it off and say that the wall belongs to both of them.²⁹  If he can do that, he can join one on and claim that the wall belongs to both? — Such a joining on would be noticeable. But the Mishnah says, ON THE OUTER SIDE?³⁰  — This is certainly a difficulty.

R. Johanan said:

1. Eccl. X, 20.
2. Ibid.
3. Ex. XXII, 27.
4. Lit., 'Since you and I sit (here).'
5. Eccl. X, 20.
6. Prov. VI, 23.
7. Isa. II, 2. The Hebrew word is [H] (lit. 'and shall flow'), which here is connected with the Aramaic vruvb 'light'.
8. Literal rendering of Num. XV, 24.
9. Ezek. XXIV, 21.
10. Lit., 'book'.
11. [ [H] prob. a transliteration of the Latin rex.]
12. In the E.V. 'tender'
13. II Sam. III, 39
14. [H] prob. an Egyptian word meaning 'ruler', interpreted by the Rabbis to mean 'father of the king'. Gen. XLI, 43.
15. Lit., 'it sent forth an edge and drew in an edge'.
16. Dan. IV, 24.
17. Ibid. 25.
18. Ibid. 26. The twelve months' reprieve is regarded as a result of Daniel's advice.
19. Esther, IV, 5.
20. [H] to cut, this being his punishment.
21. [H] denotes 'to determine', 'to decide', as well as 'to cut'.
22. Which appears to be superfluous.
23. I.e., where no definite custom exists.
24. Where there is no damage from 'overlooking', as in an orchard.
25. Thus Abaye takes the words IN A PLACE WHERE IT IS CUSTOMARY TO FENCE with IN A STRETCH OF FIELDS.
26. On Abaye's theory, this should come after IN A STRETCH OF FIELDS, not before it,
27. Which would equally be a sign that the wall is his.
28. I.e., on his side.
29. Lit., 'say it is mine and his', as having jointly made it originally.
30. How then could R. Huna say that he should make the facing on the inner side?

[The man who makes the wall] should smear it [with lime] on the outer side to the extent of a cubit. Why not on the inner side? — His neighbour will do the same on the outer side and claim that the wall is joint property. If he can do that, he can also scrape off the mark [on the outer side] and claim a share in the wall?¹  — Scraping is noticeable.

[Suppose the partition is made of] palm branches, [how is he to make a mark]? — R. Nahman said: He should direct the points of the branches²  outwards. Why not inwards? — Because then his neighbour may also turn points outwards and say that the fence is joint property.³  If he can do that, he can also cut off the points [if they are outside] and throw them away? — [The other should therefore] smear clay over them. But even so the neighbour can come and scrape it away? — Scraping would be noticed. Abaye said [that for a partition made of] palm branches there is no security save by a written deed.⁴

IF, HOWEVER, THEY BOTH CONCUR. Raba of Parazika⁵  said to R. Ashi: Let neither of them make a mark? — The rule is required for the case where one made a mark first, so that if the other does not do likewise, the first may claim [the whole wall] as his own. Is the Tanna then teaching us how to guard against rogues? — And is not the previous regulation also⁶  a precaution against rogues? Raba replied: This is right and proper in the former clause:⁷  the Tanna first states the law and then teaches how it should be safeguarded. But in the latter clause what law has he laid down that he should teach us how to safeguard it?⁸  Rabina said: We are here dealing with a partition made of palm branches, and the object of the Mishnah is to exclude the view of Abaye, that for a fence made of palm branches there is no security save through a written deed. It therefore tells us that the making of a facing is sufficient.

MISHNAH. IF A MAN HAS FIELDS SURROUNDING THOSE OF ANOTHER ON THREE SIDES AND FENCES THE FIRST, SECOND, AND THIRD, THE OTHER IS NOT BOUND [TO SHARE IN THE COST].⁹  R. JOSE SAID: IF HE¹⁰  TAKES IT UPON HIMSELF TO FENCE¹¹  THE FOURTH, THE WHOLE¹²  COST DEVOLVES UPON HIM.

GEMARA. Rab Judah said in the name of Samuel: The halachah follows R. Jose who said: IF HE TAKES IT UPON HIMSELF TO FENCE THE FOURTH, THE WHOLE COST DEVOLVES UPON HIM; and it makes no difference whether it is the encloser or the enclosed who does so.

It has been stated: R. Huna said, [The contribution to the cost of] the whole must be proportionate to the actual cost of erecting the fence;¹³  Hiyya b. Rab said, It must be proportionate to the cost of a cheap fence of sticks.¹⁴

We have learnt: IF A MAN HAS FIELDS SURROUNDING THOSE OF ANOTHER ON THREE SIDES AND FENCES THE FIRST, SECOND, AND THIRD SIDES, THE OTHER IS NOT COMPELLED [TO CONTRIBUTE TO THE COST]; which would imply that if the other fences the fourth side also, he must contribute [to the cost of the whole]. Now see the next clause: R. JOSE SAYS, IF HE TAKES IT UPON HIMSELF TO FENCE THE FOURTH, THE COST OF THE WHOLE DEVOLVES UPON HIM. This accords very well with the opinion of R. Huna who said [that he contributes to the cost of] the whole in proportion to the outlay on the fence; there is a genuine difference of opinion between the first Tanna and R. Jose, the former holding that the contribution has to be proportionate to the cost of a cheap fence of sticks, but not to the actual outlay, and R. Jose that it has [in all cases] to be proportional to the actual outlay. But if we accept the view of Hiyya b. Rab who said that it need only be proportionate to the cost of a cheap fence of sticks, what difference is there between the first Tanna and R. Jose? If he is not to give him even the cost of a cheap fence, what else can he give?¹⁵  — If you like I can say that they differ as regards the hire of a watchman,¹⁶  the first Tanna holding that he must pay the cost of a watchman¹⁷  but not of a cheap fence, and R. Jose holding that he must pay the cost of a cheap fence. If you like, again, I can say that they differ as to the first, second and third sides, the first Tanna holding that he has to contribute only to the cost of fencing the fourth side, but not the first, second and third,¹⁸  and R. Jose holding that he has to contribute to the cost of the first, second and third sides also.¹⁹  If you like, again, I can say that they differ as to whether the fence in question must be built by the owner of the surrounding fields or of the enclosed field, [if the latter is to contribute to the cost of the whole]. The first Tanna holds that the reason [why the owner of the enclosed field has to contribute] is because the took the initiative [in building the fourth fence] and that is why the cost of the whole devolves on him, but if the owner of the surrounding fields took the initiative, the other has only to pay him his contribution to the fourth fence.²⁰  R. Jose on the other hand holds that it makes no difference whether the owner of the enclosed or of the surrounding fields took the initiative In building the fourth fence, in either case the former has to pay the latter his share of the whole. According to another version [of this last clause], they differ as to [whether the fourth fence has to be built by] the owner of the enclosed or the surrounding fields [in order to make the former liable for contributing to its cost]. The first Tanna holds that even if the owner of the surrounding fields makes the fourth fence, the other has to contribute to the cost,²¹  whereas R. Jose holds that if the owner of the enclosed field takes it upon himself to build the fourth fence, then he has to contribute to the cost [of the whole] because he makes it clear that he approves of it, but if the owner of the surrounding fields builds it, the other does not pay him anything.²²

1. V. n. 4.
2. [Another rendering, 'The staves supporting the hedge' (R. Han).]
3. V. p. 14, n, 4.
4. That is to say, there is always the possibility of fraud unless there is evidence in writing duly witnessed as to how the partition was made.
5. [Identified with Farausag. a district near Bagdad. V. Obermeyer, op. cit., 269.
6. That if one builds the fence on his own ground he should make a mark.
7. That the one who wants to build should withdraw into his own ground.
8. There is no law that a fence should be built in a stretch of cornfields.
9. Whether because there is no custom that fields should be fenced or because the fencing is of little advantage so long as the fourth side is open.
10. The question which of the two is meant is discussed in the Gemara.
11. Lit., 'rose up and fenced'.
12. I.e., his share in the cost of the whole.
13. Which will vary according to the materials used by the encloser.
14. Because the other can say that this is all that he requires.
15. That is to say, can even the Rabbis fix his contribution at anything less than this?
16. During the time that the corn is ripe.
17. This would be less than the cost of a cheap fence, and the Rabbis might say that since this is all he requires, this is all that the fence is worth to him, and he need not contribute more than this.
18. That is to lay, we infer only this from the language of the Mishnah, and not, as above, that he has to contribute to the cost of the whole.
19. Proportionately to the actual cost, according to one authority, and to the cost of a cheap fence according to the other.
20. It is not clear on what grounds this opinion is ascribed to the first Tanna, as there is no hint of it in the Mishnah. Rashi does not seem to have had the whole of this clause in his text; v. D. S. a.l.
21. Apparently the cost of the whole is meant.
22. Because he can say that he does not want any fencing.