A History of the Mishnaic Law of Damages, Part 3: Baba Batra, Sanhedrin, Makkot (Studies in Judaism in Late Antiquity) 9781556353673, 1556353677

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A HISTORY

OF THE MISHNAIC LA \v' OF DAMAGES

STUDIES IN JUDAISM IN LATE ANTIQUITY EDITED BY

JACOB NEUSNER

VOLUME THIRTY-FIVE

A HISTORY OF THE MISHNAIC LAW OF DAMAGES PART THREE

A HISTORY OF THE MISHNAIC LAW OF DAMAGES BY

JACOB NEUSNER University Professor The Ungerleider Distinguished Scholar of Judaic Studies Brown University

PART THREE

BABA BATRA, SANHEDRIN, MAKKOT TRANSLATION AND EXPLANATION

Wipf&Stock PUBLISHERS Eugene,Oregon

Wipf and Stock Publishers 199 W 8th Ave, Suite 3 Eugene, OR 97401 A History of the Mishnaic Law of Damages, Part 3 Baba Batra, Sanhedrin, Makkot By Neusner, Jacob Copyright©1984 by Neusner, Jacob ISBN 13: 978-1-55635-367-3 ISBN 10: 1-55635-367-7 Publication date 3/20/2007 Previously published by E. J. Brill, 1984

For Norman and Sylvia Orodenker Daniel,Judith, andJoshua

CONTENTS Preface ........ . Abbreviations and Bibliography Transliterations . . . . . . .

IX

xv • XXXI

BABA BATRA I. II. III. IV. V. VI. VII. VIII. IX. X. XI.

Introduction to Baba Batra. Baba Batra Chapter One . Baba Batra Chapter Two. Baba Batra Chapter Three Baba Batra Chapter Four. Baba Batra Chapter Five . . Baba Batra Chapter Six . . Baba Batra Chapter Seven . Baba Batra Chapter Eight Baba Batra Chapter Nine. Baba Batra Chapter Ten.

3

19 31 41 53

60 74 83

87 102 116

SANHEDRIN XII. XIII. XIV. XV. XVI. XVII. XVIII. XIX. XX. XXI. XXII. XXIII.

Introduction to Sanhedrin . Sanhedrin Chapter One . Sanhedrin Chapter Two . Sanhedrin Chapter Three. Sanhedrin Chapter Four . Sanhedrin Chapter Five . Sanhedrin Chapter Six . . Sanhedrin Chapter Seven. Sanhedrin Chapter Eight. Sanhedrin Chapter Nine . Sanhedrin Chapter Ten .. Sanhedrin Chapter Eleven .

131 137

152 160 170 181

186 191 202 208 215 227

VIII

CONTENTS

MAKKOT XXIV. XXV. XXVI. XXVlJ.

Introduction to Makkot Makkot Chapter One . Makkot Chapter Two . ;\fakkot Chapter Three.

Index ...........

.

PREFACE The division of Damages contains two sizable tractates which are themselves subdivided, and in this volume we complete our consideration of both of them. The three Babas, as I shall show in the introduction, in fact constitute a single, indivisible tractate. There is, moreover, no reason to regard Sanhedrin and Makkot as distinct, since the latter carries forward both the theme and the formal character of the second unit of the former. This commentary is meant to explore the thesis that Mishnah supplies its own first, and best, exegesis. The framers of the document so express themselves, through imposing particular formal, syntactic, and redactional traits, as to impart a single, unambiguous, and original meaning on the bulk of their materials. To see their primary, historical intent we have to pay close attention to the formal traits of language which convey that intent. The form-analytical commentary which follows does precisely that. It goes without saying, as I shall explain, that there are a great many questions relevant, and even important, to the understanding of these tractates which I do not choose to answer. A commentary of one sort need not, after all, pretend to do all of the kinds of work undertaken by commentaries of quite a different character and purpose. The character of this translation and explanation in detail expresses the purpose of the larger work of which it is part. To present a history of the Mishnaic law, I have first of all to give an account of the document itself, first of all to state what I believe Mishnah says, in a rendition, in English, as close to the formal and syntactical character of the Hebrew as English permits. This I do in the translation, which itself is a commentary in its word-choices and patterns and its version of the division of sentences into stichs, of paragraphs into sentences, and of chapters into paragraphs. (But this last depends, for the convenience of the reader, on the printed text of J:Ianokh Al beck.) The translation makes no important contribution to the explanation of realia or the identification of various places, persons, and things, mentioned in the document. What it does contribute is the first translation of a rabbinic document to take full and faithful account of the rigidly formalized, public and anonymous character of Mishnaic language. I provide complete form-analytical translation of Mishnah and of Tosefta. The explanationis rather different from any of its predecessors, so different that it must be called "explanation." For if what have been done in the past are called commentaries, this cannot be represented as a commentary at all.

X

PREFACE

What I do not say invariably is more important than what I to discuss. By radically revising and abbreviating the established ex◄ agendum, I believe I have made my richest contribution to the interp1 of Mishnah. This is in two aspects. First, I have tried to force Mishnah to serve as its own comrr I do so by relying heavily upon those formal and even substantiv of the document which serve to provide a clear account of Mi meaning and message. I pay careful attention to matters of form and lation. We shall see time and again that principally through settir contrast, placing of a phrase for emphasis, or other obvious Iii and syntactical modes of highlighting its meaning, Mishnah serve own first, and therefore best, commentary. Second, I have revised what I believe to be the definition of thos appropriate to, and even acceptable for, exegesis of Mishnah in pa1 as a singular document of its period. This last point requires some an tion. There are two sides to the problem of explaining what l\ means. Both of them are generated by one absolutely false concept more accurately, misleading analogy. The first problem is the bringing to Mishnah of issues clearly ext:J to its original meaning. This set of comments plainly is needless 1 the issues are generated by later problems and questions. They ar naturally addressed to Mishnah, however, by people who assume Jlv speaks to them and therefore must address issues of importance tc This ahistorical approach is possibly valid for the generating a folding of law. But it is not correct for the interpretation of what 1V as a concrete document meant to the particular people who made The second problem is corollary, namely, the placing of Mi: materials into the context of a whole legal system. When Mishnah in a larger framework than Mishnah, we are prevented from seein~ nah's materials as a coherent corpus on their own. This latter appr< Mishnah is absolutely opposite to our purpose. For I propose t< and, later, historically to account for the unfolding of, the law of Jlv in particular. If we assume that Mishnah constitutes a single docrn and the internally harmonious formal and intellectual traits of 1V require that we make that assumption-then we have no choice honor the limits of the document when attempting to describe and i11 it. Until now all commentators to Mishnah have taken only a interest in the shape and structure of Mishnah itself. It goes v saying, none has asked a historical-exegetical question ("What do mean to the person who originally said it and who did not know w successors would want to say about it?") to begin with. For their p

PREFACE

XI

was a different one. It was dictated by a social and intellectual task quite separate from ours. They addressed themselves not to the exegesis and expression (let alone the worldview) of a given document. Nor could they imagine the notion that the laws in their hands formed discrete units of information. Quite the contrary, they began with the conception of a completely unitary legal system, expressed in discrete documents originating in diverse places and time, but nonetheless all together forming a timeless, seamless conceptual structure. Their task was defined by this rather platonic metaphor, namely, to relate each of the parts to the transcendent whole, and to force the whole to encompass all of the parts. It is not, as I originally thought, the ahistorical (or, anti-historical) and harmonistic purpose of the earlier exegetes which made their Mishnah-commentaries so intellectually prolix, indeed, indifferent and irrelevant to the text under discussion. That is a misunderstanding which it has taken me many years to recognize. It is, rather, that· the earlier exegetes presuppose something much more profound, much less susceptible to articulation. This is, as I said, the construct, "Jewish law," or "halakhah." Of this construct, to them Mishnah constitutes an important component. In their mind the correct approach to Mishnah's interpretation is to relate its halakhah to other halakhah, that is, to "the law." This harmonistic, atomistic and yet encompassing approach is natural for people who keep the law and who take for granted their audience wants to know the law, even though not all of the law of a given document is practical and practiced. But the point of interest is clear, and it explains to them what is relevant and what is not. Since social context and intellectual framework define what is relevant, their essays-to us, total chaos-to them are orderly and reliable. But the fact remains that in a different world, their language of exegesis is gibberish, just as is ours to them. When we realize this fact, we understand why it is that the distinctive, documentary character of Mishnah itself has attracted so little interest. Mishnah as such has failed to define the boundaries of an appropriate exegesis. The definitive canon awaiting explanation and extension is other. That is to say, Mishnah is part of that other canon. The canon awaiting interpretation is shaped by Mishnah, only in so far as Mishnah presents its share of legal statements-the law. Consequently Mishnah is read not from whole to part, as a sequence of divisions, tractates, and chapters. This I am the first to do, as the formal character of my work makes clear. And this is the right way to approach the document. But by others Mishnah has been and is read essentially as a mass of individual sentences, tens of thousands of bits of legal information, all of them part of, and arrayed against, a larger construct, the law, and each of them to be placed into juxtaposition with other bits and pieces of the law. So, as I said, the notion

XII

PREFACE

of "the halakhah" obliterates the character of Mishnah as an autor document and at best allows Mishnah the status of an authoritativ of law. The same treatment, of course, is accorded to Tosefta, the two T: the diverse legal exegetical compilations, Sifra and Sifre, for e: and to much else. The result is that at each point exegetes tend tc "everything about everything," so to speak. It is not because t confused, even though the results are confusing. For despite the f their commentaries appear to be not merely allusive, but irrelevaff text at hand, and even though they are rich in unprovoked qu artificial dilemmas, and invented solutions, the reason is that the fun tal theory of the document requires precisely those procedures wl followed. If, to take a current and choice example, Saul Lieberman's Ki-Fshutah ("a comprehensive commentary to the Tosefta") treats as an excuse for long disquisitions on diverse philological and leg: tions, the reason is that that is precisely how Lieberman thinks tb should be done. And the reason, I believe, is not merely the ahi character of the mind-set of the traditionalist, but, as indicated, of the more profound conviction as to the character of the law diverse documentary expressions. The result to date has been an account of immense philological aJ value. We are able to explain a great deal about the meaning and ir of the sentences of the law, as found (as it happens) in Mishnah and (and the rest of rabbinical literature). We can link together diverse , tions and rules appearing here, there, everywhere; they are formec single fabric, even (in the monumental codes of the law) a seamle We have what is besought, which is the power to draw upon, an to specific circumstances, the whole wisdom and weight of the la, is to say, the established exegetical program has succeeded in doing p what it set out to do. The tasks originally defined by the concef "the law" have been carried out. The one thing we cannot say on the basis of the available comme both "traditional" and "scientific" (both are wildly inappropriate is to state clearly what it is that Mishnah (to take our example) w: say, in its own setting, within the limits of its own redactional frarr upon the subjects chosen by it, and for purposes defined within tl of those specific people, its authors, who flourished in one concret setting. Reading the document by itself, in its historical context anc fore outside of its atemporal, halakhic context, requires a different ap That approach is represented, I firmly believe, in the pages of thi It is given by this explanation. So the need for these volumes of translation and explanation is ,

PREFACE

XIII

not solely by the concluding, systemic description and interpretation. That was my conception for Holy Things and Women, and, in retrospect, I think I was too apologetic. Nor is the issue of the work solely the historical -primary, original-meaning of the text in the minds of the people who so phrased their ideas and arranged their sentences as to give us these, and not some other, expressions of their ideas. The decisive and determinative issues are simply, What is the Mishnah? What is its shape and structure? What is the agendum of its law? How is that agendum to be delineated and interpreted as a complete and exhaustive account of what Mishnah wishes to say? These questions are answered in this book and its fellows. The answers I give here are to these questions, not to those many others already dealt with, with greater or less measure of success, in the established and received exegetical tradition. People who want to know what "the tradition" has to say are not apt to open these books and stay on to study them in any event. Other sorts of readers will find their way to these pages. I do not think they will find the methods and suppositions alien or the results unsatisfying. I began this project weighed down by humility before the intellectual achievements of others who have studied these same problems. I conclude it with greater understanding, and not less appreciation, of their work. But at the same time I see much more clearly that, so far as they claim to speak about Mishnah, they have not done what they promised. So far as I claim to present and briefly to explain what it is that Mishnah, in its limits, for its purposes, to its chosen audience, wishes to say, I do what I claim to do. That fact accounts for the traits of the translation and the character of the explanation-its brevity, severe limitation of the exegetical agendum, and above all, its insistence upon Mishnah's form and formulary expression as definitive of Mishnah's meaning. This is not meant to excuse or apologize. I have worked on Mishnah since 1972, and the last of these books is apt to appear not much before 1985. Twelve years are a long time to devote to a single document, however complex, when one's interest is in only a limited aspect of said document. For, when all is said and done, my real interest remains focused upon the history and structure of nascent rabbinic Judaism. That means the main work is yet before me, not behind. These twelve years and forty-three books of mine, not to mention many more years of work and many more books of my several doctoral students, all are meant only to prepare the way for a different sort of analysis entirely. This is an approach to Mishnah which is at once more historical, more religious-philosophical, and more religious-historical than has even been attempted. I do not know whether it will succeed. It remains to thank a few among the many to whom much is owed.

xrv

PREFACE

First of all, I owe thanks to the John Simon Guggenheim Mc Foundation for awarding to me yet a second Guggenheim Fellows 1979-1980 to facilitate completion of my History of the Mishnaic Appointed Times and History ofthe .MishnaicLaw of Damages.This reco of the interest of the scholarly world in the results of my work i appreciated. It also is important to me. At the same time I owe th Brown University for an extraordinary research leave, awarded in tl connection. Second, I wish to thank Brown University for paying the costs of these manuscripts. Provost Maurice Glicksman and Associate Dear Durand received without complaint a shower of typists' bills. In of exceedingly painful budgetary choices, they loyally and gen paid my typists and did so promptly and courteously. This every< humble expression of their belief in the worth of my project is precious to me as those research fellowships and honorary doctorate: have come my way. Third, I should be remiss if I did not mention by name the jun leagues who in my graduate seminar read their work and heard abm: the graduate students of the period in which this part of the proj, coming to completion: Leonard Gordon, Peter Haas, Martin Jaff Alan Peck; and my former colleague, Richard Samuel Samson, Hebrew Union College-Jewish Institute of Religion, Cincinnati the work of all of these as well as of some of my former students is : gral part of this project, they in due course will make their own co tions as well. Fourth, my colleagues in the Department of Religious Studie provided a constructive and helpful framework for my teachi1 scholarship. I must single out Professors Wendell S. Dietrich and E: Frerichs with thanks not only for exemplary collegiality but for fri< and love. Finally, after all these years, I have to mention and take note enthusiastic support of my children, Samuel Aaron, Eli Ephraim, Mordecai Menahem, and Margalit Leah Berakhah, who were when the work began, and who approach maturity as it ends. ! hoped they would read these books, but I should want them to be of knowing that, when I was doing the work, they charmed and c my life. I could not have done this work without them-nor should wanted to. Let a veil of silence be drawn before the next, the best, f silence can contain all that is felt, all that words cannot say, in hon Suzanne Richter Neusner.

ABBREVIATIONS AND BIBLIOGRAPHY Abrahams AE Ah. Albeck Albeck, Acquisition Albeck, Avot Albeck, Damages Albeck, Debt

=

Israel Abrahams, "Sanhedrin," in J. Hastings, Encyclopaediaof Religionand Ethics, XI, 184-185. = Tosafot R. 'Aqiba Egger. From Mishnah, ed. Romm. = 'Ahilot = I;Ianokh Albeck, Shishah sidre Mishnah. Seder Neziqin (Tel Aviv, 1952). S. Albeck, "Acquisition," Encyclopedia]udaica 2:216-221.

S. Albeck, "Avot Nezikin," EncyclopediaJudaica 3 :986-989. S. Albeck, "Damages," EncyclopediaJudaica 5 :1233-1236. S. Albeck, "Assignment (of debt)," Encyclopedia]udaica 3 :768770. Shalom Albeck, Dine ha-mamonot ba-Talmud (Tel Aviv, 1976). Albeck, Din S. Al beck, "Gerama and Garme," EncyclopediaJ udaica7 :430-431. Albeck, Gerama S. Albeck, "Gift," EncyclopediaJ udaica7 :560-563. Albeck, Gift S. Albeck, "Lost Property," EncyclopediaJudaica 11 :504-506. Albeck, Lost S. Albeck, "Maritime Law," EncyclopediaJudaica 11:996-997. Albeck, Maritime Albeck, Ownership S. Albeck, "Ownership," EncyclopediaJudaica 12:1531-1534. Albeck, Property S. Albeck, "Property," Encyclopediafudaica 13:1146-1149. Albeck, Sale S. Albeck, "Sale,'' EncyclopediaJudai&a14:675-680. Albeck, Sanhedrin = Chanokh Albeck, "ha-Sanhedrin u-Nesi>ah,'' Zion 1942-43, 8:165-178. S. Albeck, "Torts,'' Encyclopediafudaica 15:1272-1277. Albeck, Torts Albeck, Yeush S. Albeck, "Ye>ush,'' Encyclopediafudaica16:774-775. Amram D. W. Amram, "Retaliation and Compensation,'' JewishQuarterly Review 1911, NS 2:191-211. Victor Aptowitzer, Die syrischen Rechtsbiicherund das mosaischAptowitzer talmudischeRecht (Wien, 1909). Victor Aptowitzer, "Observations on the Criminal Law of the Aptowitzer, Low Jews," ]QR 1924-25, 15:77ff. Ar. 'Arakhin Auerbach, C. C. Auerbach, "The Talmud-a gateway to the common law,'' Western Reserve Low Review 1951 Qune), 3:5-49. L. Auerbach, Das jiidische Obligationrechtnach denQuellen und mil Auerbach, L. besondererBeriicksichtigungdes romischenund deutschenRechts systematisch dargestellt(Berlin, 1871). A.Z. 'Abodah Zarah Babylonian Talmud B. B.B. Baba' Batra' B.M. Baba' Me~i'a' Baba' Qamma' B.Q. Leon Babany, Institutions Juridiques des Romains, compareesaux Babany Institutions furidiques des Hebreux (Paris, 1926). = W. Bacher, "Sanhedrin," in J. Hastings, A Dictionary of the Bacher Bible, IV:397-402. H. Baruk, "Le tsedek dans le droit hebraique; !'organisation de Baruk la justice et !'examen des temoignages," HaHkvah 1969, 7: 9-35. J. M. Baumgarten, "The duodecimal courts of Qumran, RevelaBaumgarten tion, and the Sanhedrin,'' Journal of Biblical Literature 1976, 95:59-78.

XVI

ABBREVIATIONS

Bayne

D. C. Bayne, "Essay on the Hebrew Civil Code," ( Marshal Law Review 1954, 3:23-32. E. Beaucamp, "La justice en Israel," Populus Dei ... onore del Card. A. Ottaviani (Rome, 1969), 201-235. Berakhot Isaiah Berger, ed., Analytical Index to the Jewish Quarteri

Beaucamp Ber. Berger Berkovits Berlin, 1968 Berlin, 1972 Berlin, 1971 Bert. Bes. Bickermann Bik. Blackman Blau,

J.

Blau, L. Blau, Papyrus Blau, Prosbo!

Blidstein Blidstein, CatJital Blinzer Blum Bossowski Brauner Buchler Burkill Buss C

AND BIBLIOGRAPHY

1889-1908 (N.Y., 1956). E. Berkovits, "The biblical meaning of justice," Judai 18:188-209. Charles Berlin, Harvard University Library. Catalogue OJ Books (Cambridge, 1968), I-VI. Supplement (Cambridge, 1972), I-III. Widener Library Sheljlist, 39.Judaica (Cambridge 1971). 'Obadiah of Bertinoro. From Mishnah, ed. Romm. Be~ah E. Bickermann, "'Al ha-Sanhedrin," Zion 1938, 3:356-c Bikkurim Philip Blackman, Mishnayoth. Vol. IV. Order Nezikir. Hebrew Text, Introductions, Translation, Notes, Sup Appendix, Indexes (London, 1952). J. Blau, "Lex Talionis," Yearbook of the Central Co'!, American Rabbis 1916, 26:336-66. Ludwig Blau, Der Concursus Vitierum nar;h Talmudiscl., (Budapest, 1887). Ludwig Blau, "Die Strafklauseln der griechischen Urkunden beleuchtet durch die aramaischen Papyri ur den Talmud," MGWJ1919, 63:138-155. Ludwig Blau, "Prosbol im Lichte der Griechischen Pa: der Rechtsgeschichte," Sonderabdruck aus Festschrift jahrigen bestshen der Franz-Josej-Landesrabbinerschule (E 1927), pp. 96-151. G. Blidstein, "Notes on Hejker Bet-Din in Talmu Medieval law," Dine Israel 1973, 4:35-49. G. J. Blidstein, "Capital punishment; the classic Jev cussion," in Understanding the Talmud, selected by l (N.Y., 1975), pp. 313-324. J. Blinzer, "Das Synedrium von Jerusalem und di prozessordnung der Mischna," Zeitschrift fiir die neutest, Wissenschaft 1961, 52:54. F. Blum, Le Synhedrin (Strassbourg, 1889). Frank Bossowski, "Roman Law and Hebrew Privat, Bulietino dell' Instituto di Diritto Romano "Vittoria S cialoj, XL VI n.s. V: 354-363. R. A. Brauner, "Some Aspects of offense and penalt Bible and the literature of the ancient Near East," Grai Annual of Jewish Studies 1974; 3:9-18. Adolf Buchler, Das Synedrion in Jerusalem und das grosse " in der Quaderkammer desjerusalemischen Tempels (Wien, U T. A. Burkill, "Competence of the Sanhedrin," Vigiliae nae 1956, 10:80-96. Martin Buss, "The distinction between civil and crin: in ancient Israel," Proceedingsof the Sixth World Congress Studies 1977, 6, 1: 51-62. W. H. Loewe, The Mishnah of the Palestinian Talmud (Ha; 'al pi ketab-yad Cambridge) (Jerusalem, 1967).

ABBREVIA'I'IONS

Carmichael

AND BIBLIOGRAPHY

XVII

C. M. Carmichael, "A singular method of codification of law in the Misbpatim,'' Zeitschrift fur die Alttestamentliche Wissenschaft 1972, 84: 19-25. Cazelles H. Cazelles, "La transgression de la loi en tant que crime et delit,'' Populus Dei •. •, studi in onorede/ Card. A. Ottaviani (Rome, 1969), 521-528. H. P. Chajes, "Les Juges juifs en Palestine, de ]'an 70 a l'an Chajes 500,'' Revue des etudesjuives 1899, 39:39-52. Cohen B. Cohen, "An essay on possession in Jewish law," in Understanding the Talmud, selected by A. Corre (N.Y., 1975) pp. 325-329. Cohen Boaz Cohen, "The relationship of Jewish to Roman Law,'' Jewish Quarterly Review, 1944, 34:267-280. Cohen, Arbitration Boaz Cohen, "Arbitration in Jewish and Roman Law," Revue Internationale des Droits de I' Antiquiti 1958, 5: 165-223. Cohen, Peculium Boaz Cohen, "Peculium in Jewish and Roman Law," American Academy for Jewish Research. Proceedings, 1951, 20: 135-234. Cohen,]ustiftcation M.A. Cohen, "Justification and excuse in the Judaic and common law: the exculpation of a defendant charged with homicide," New York University Law Review 1977, 52:599-628, 970-3. Cohn H. H. Cohn, "The penology of the Talmud," Israel Law Review 1970, 5:53-74. Cohn, Admission H. H. Cohn, "Admission,'' Encyclopediafudaica 2:290-292. Cohn, Ancient H. H. Cohn, "Ancient Jewish equity," in Equity in the World's Legal Systems • .• dedicated to R. Cassin (Brussels, 1973). Cohn, Bet H. H. Cohn, "Bet Din and judges," Encyclopediafudaica 4:719727. Cohn, Confiscation H. H. Cohn, "Confiscation, expropriation, forfeiture,'' EncyclopediaJudaica 5: 880-882. Cohn, Evidence H. H. Cohn, "Evidence," EncyclopediaJudaica 6:991-997. Cohn, Pleas H. H. Cohn, "Pleas," Encyclopedia fudaica 13:631-636. Cohn, Practice H. H. Cohn, "Practice and procedure,'' Encyclopedia Judaica, 13:952-962. Cohn, Witness H. H. Cohn, "Witness," Encyclopediafudaica 16:584-590. Cohn, Talion H. H. Cohn, "Talion," Encyclopedia Judaica (Jerusalem, 1971) 15:742. Cohn, Usury H. H. Cohn, "Usury," Enryclopediafudaica 16:27-33. Conflict "Conflict resolution and the legal culture: a study of the rabbinical court," OsgoodeHall Law journal 1971 9:335. Criticism "Criticism of the state in ancient Jewish tradition" Ohio State Law Journal 1970, 31 : 322. Danby Herbert Danby, "The Bearing of the Rabbinical Criminal Code on the Jewish Trial Narratives in the Gospels," The Journal of TheologicalStudies 1919-20, 21: 51-76. Daube D. Daube, "Negligence in the Early Talmudic Law of Contract (PeshiAmbuha>deSifre. Ya'aqob Ze>eb Yaskobitz (Lodz, 1929. Repr.: Bene Beraq, 1967) I-II. A. J. Silverstein, "Consumer protection in Talmudic law," Commercial Law Journal 1974, 79:279-82. A. J. Silverstein, "Right of appeal in Talmudic law," CaseWestern ReserveJournal of International Law 1973 (Winter) 6:33-47. A. J. Silverstein, "Liability of the Physician in Jewish law," Israel Law Review 1975; 10:378-388. Shebu'oth. Translated into Englith with Notes, Glottary, and Indicet. By A. E. Silverstone (London, 1948: Soncino Press). Baba Bathra. Translated into English with Notes, Glossary, and Indices. By Maurice Simon and Israel W. Slotki (London, 1948: The Soncino Press). Henry S. Simonis, Zum a/ten judischen Zivilrecht (Berlin, 1922). Henry S. Simonis, Some Aspects of the ancient Jewish Civil Law (London, 1928). D. E. Skweres, "Das Motiv der Strafgrunderfragung in biblischen und neuassyrischen Texten," Biblische Zeitschrift 1970, 14:181-197. Horayoth. Transla_tedinto English with Notes, Glossary, and Indices. By Israel W. Slotki (London, 1948: Soncino Press). G. A. Smith, "The Jewish Constitution from Nehemiah to the Maccabees," The Expositer 1906 (7th series) Sept., 193-209. John M. P. Smith, The Origin and History of Hebrew Law (Chicago, 1931). R. Solomon, L' Esclavage en droit comparejuif et romain (Paris, 1931). Sotah D. Sperber, "On the transfer of property from Jew to non-Jew in Amoraic Palestine (200-400)," Dini Israel 1973, 4:17-34. D. Sperber, "Flight and the Talmudic law ofusucaption, a study in the social history of 3rd century Palestine," Revue Internationale des Droits de I' Antiquitl 1972, 19 :29-42. D. Sperber, "Laesio enormis and the Talmudic law of ona'ah, a study in the social history of 3rd century Palestine," Israel Law Review 1973, 8:254-274. Sukkah Mayer Sulzberger, The Ancient Hebrew Law of Homicide (Philadelphia, 1915). Mayer Sulzberger, The polity of the ancient Hebrews (Philadelphia, 1912). Tosefta Sidrl Mishnah. Neziqin, Qodoshim, Tohorot. Ketab yad Yerushalayim, 1336. Ketab Yad beniqud left messoret Teman. (Repr.: Jerusalem, 1970). Introduction by S. Morag. Ta'anit Temurah Terumot Tohorot See Saul Lieberman, Totifet Rishonim. G. M. Tucker, "Legal background of Genesis 23," Journal of Biblical Literature 1966, 85:77-84. G. M. Tucker, "Witnesses and 'dates' in Israelite contracts," Catholic Biblical Quarter!J 1966, 28 :42-45. Tebul Yorn Tife'ret Yisra>elBo'az. See TYY.

XXVIII

TYT TYY

Unknown

Uqs. l'.zicl y Van Sclms Vat 130 Vat 112 Wahrhaftig De Ward

\X'axman \vebbcr Weinberg

Weingreen

Weis Weisfeld \X/eis1nann

Weiss-I lalivni

Williams Wines Wolfson

\'(7a,;ncr

"'

'{.

'{.T. Yad. Yaron

ABBREVL\_TIO:\TS AND BIBLIOGRAPHY

Tosafot Yom Toh. Yorn Tob Lipmann Heller, 1579-165· reprint of Mishnah, ed. Romm. Tife'ret Yisra'el, Yakhin. Israel ben Gedaliah Lipschut: 1860. (With supercommentary of Baruch Isaac Lipsc TYB.) From reprint of Mishnah, ed. Romm. 1vfishnah. Sedarim Zeraim, ivloed, 1Vashim. Unknown Edition in Pisaro or Constantinople. (Jerusalem, 1970). 'Uq~in B. Uziel, "Din u--:\fishpat," Sinai 1945, IX: 107ff. Talmud Bab/;. 'al yede Daniel Bomlmx bishenat _; 1522]. Venezia (Venice, 1522. Repr.: Jerusalem, 1971: A. Van Sclms, "The Goring Ox in Babylonian and Law," Archii• Orienta!ni 1950, 18/4. Manuscripts of the Babylonian Talmud. Frotn the Co!lecti, Vatican Library. (Jerusalem, 1972). Series A. 1'1anuscripts of the Babylonian Talmud. From the Co!lectia Vatican Library (Jerusalem, 1974). Series B. S. Wahrhaftig, "Labor law," Encyclopedia Judaica 10: 13: E. F. De Ward, "Superstition and judgment, archaic 1 of finding a verdict," Zeitschrift fiir die alttestammt!iche schaft 1977, 89:1-20. M. Waxman, "Civil and Criminal Procedure of Jewish ( Students Annual ~( the Jewish Theological (N.Y. pp. 259-309. G. J. Webber, "The principles of the Jewish law of pn Studies in Jewish Jurispmdence II (N.Y., 1974) pp. 1-12. M. Weinberg, "Die Organization der jiidischen Ortsger in dertalmudischen Zeit," MGlf:7]1896-97, 41 :588-604, t 673-691. J. Weingreen, "The Deuteronomic legislator; a proto-i type," in Proclamation and Presence: Old Testament Essqys ih of G. H. Davies (Richmond, Va., 1970) pp. 76-89. P. R. \Vc.iss, J1ish11ahHorayoth. Its History a11dExpo.,itioi chester, 1952: Manchester University Press). Israel Harold \vcisfeld, Labor Legislatiofl in the 7 abm1d (( 1946). J. Weismann, "Talion und i:iffentliche Strafe im Mo: Rechte," Festschri(t fiir Adolf Wach I (Leipzig, 1913) PF David \v'ciss-lialivni, "The role of the mara d'atrn in law," Proceedings of the Rabbinical Assembly 1976, 38: 12' G. R. Williams, "The purpose of penology in the mo: and today," Bibliotheca Sacra 1976, 529 :42-55. E. C. Wines, Commentaries on the !aivs of the ancient }Jebr1 an essqy on civil society and governvmzt (N.Y., 1853). 1--1.A. Wolfson, "Synedrion in Greek Literature and Jewish Revie)l) 1945-46, 36: 303-306. Jacob ?--:cusncr, A l-lislor_yof the Mishnaic Lem• o/ TVomm ( 1980f.) T-V. V. Wagner, in gebundener Sprac/Jc mu! Recht ..s, im israe!itischen Recht (Berlin, 1972). Yerushalmi. Palestinian Talmud. Yorn Tob Yadayim R. Yaron, "The goring ox in Near Eastern law," in Jen in Ancient and Afodern hrael, ed. by Baim Cohn (N.Y., '.

ABBREVIATIONS

Yaron, Introduction Yaron, Laws Yaron, Systems Yeivin Yeh.

z

Zab. Zeb. Zeitlin Zeitlin, Pol. Zeitlin, San. Zeitlin, Syn. Zeitlin, Title Zeitlin, Greek Ziegler Zucrow Zunz Zuri

zy

AND BIBLIOGRAPHY

XXIX

Reuven Yaron, Introduction to the law of the Aramaic papyri (Oxford, 1961). R. Yaron, The Laws of Eshnunna (Jerusalem, 1969). R. Yaron, "Jewish Law and other Legal Systems in Antiquity," Journal of Semitic Stu dies 1959, 4: 308ff. Israel Yeivin, A Collection of Mishnaic Geniza Fragments with Babylonian Vocalization. With Description of the Manuscripts and Indices (Jerusalem, 1974). Yebamot M. S. Zuckermandel, Tosephta. Based on Erfurt and Vienna Codices (Repr.: Jerusalem, 1963). Zabim Zebal).im S. Zeitlin, "Studies in talmudic jurisprudence; possession, pignus and hypothec," ]QR 1969, 60:89-111. Solomon Zeitlin, "The Political Synedrion and the Religious Sanhedrin," ]QR 1945 (Oct.) v. 36. Solomon Zeitlin, "ha-Sanhedrin bi-Yeme ha-Bayit ha-Sheni" ha-Doar 1941, 22, 7: 109. Solomon Zeitlin, "Synedrion in the Judeo-Hellenistic Literature and Sanhedrin in the Tannaitic Literature," Jewish Quarterly Review 1946 (Jan.) Solomon Zeitlin, "The Titles High Priest and the Nasi of the Sanhedrin," ]QR 1957-58, 48:1-5. Solomon Zeitlin, "Synedrion in the Greek Literature, the Gospels and the Institute of the Sanhedrin,'' ]QR 1946 (Oct.) 36. Ziegler, Die Konigsgleichnissedes Midrash beleuchtetdurch die Kaiserzeit (Breslau, 1903). Solomon Zucrow, Aqjustment of Law to Life in Rabbinic Literature (Boston, 1928). Leopold Zunz, "Etwas iiber die jiidische Literatur,'' in Zunz, Gesammelte Schriften, v. 1. Jacob Samuel '.,?:uri,Shitat ha-ta'anot (London, 1933). Zera' yifpaq. By Yi~]J.aqI;Iayyot (Brooklyn, 1960).

Mrs. Lee Haas served as bibliographical research assistant for this project.

TRA:t\SLITERATIONS N

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BABA BATRA

CHAPTER ONE

INTRODUCTION TO BABA BATRA The concluding tractate in the triplet on civil law cannot be differentiated from its predecessor, since Baba Batra begins right in the middle of a topical unit inaugurated at the end of Baba Mesia. Once the theme of real estate transactions is concluded, the tractate goes on to commercial transactions and then legal documents, with special attention to wills and bonds of indebtedness. Scripture supplies the principles realized in the law. For the present tractate, however, Scripture provides remarkably few facts. The relevant biblical passages are as follows: Lev. 19:35-36: You shall do no wrong in judgment, in measures of length or weight or quantity. You shall have just balances, just weights, a just ephah, and a just hin: I am the Lord your God, who brought you out of the land of Egypt. Deut. 25:13-11: You shall not have in your bag two kinds of weights, a large and a small. You shall not have in your house two kinds of measures, a large and a small. A full and just weight you shall have, a full and just measure you shall have; that your days may be prolonged in the land which the Lord your God gives you. For all who do such things, all who act dishonestly are an abomination to the Lord your God. Numbers 27:8-11: And you shall say to the people of Israel, If a man dies, and has no son, then you shall cause his inheritance to pass to his daughter. And if he has no daughter, then you shall give his inheritance to his brothers. And if he has no brothers, then you shall give his inheritance to his father's brothers. And if his father has no brothers, then you shall give his inheritance to his kinsman that is next to him of his family, and he shall possess it. And it shall be to the people oflsrael a statute and ordinance, as the Lord commanded Moses. Dettt. 21: 15-17: If a man has two wives, the one loved and the other disliked, and they have borne him children, both the loved and the disliked, and if the firstborn son is hers that is disliked, then on the day when he assigns his possessions as an inheritance to his sons, he may not treat the son of the loved as the first-born in preference to the son of the disliked, who is the firstborn, but he shall acknowledge the first-born, the son of the disliked, by

4

INTRODUCTION

'I'O BABA BA'I'RA

giving him a double portion of all that he has, for he is the first issu strength; the right of the first born is his.

When we consider the sizable topical repertoire of the tracta1 whole, we shall realize that the people who made the tractate had independent program. To formulate that program they in no way r to Scripture, except for some rather specific and circumscribe, governing inheritance. These obviously they could not, and did nc to, ignore. But the tractate is not about inheritance. It is part of a vast, and, become clear, elegant construction, the three Babas as a whole. Tb in two distinct parts, of equal size, each consisting of four topica The thirty chapters break, in accord with my theory, precisely in the 1 I shall now spell this theory of the whole and then we shall turn present tractate in particular. When we survey the entire construction of the three Babas, w see is a perfectly simple set of eight units. These move from ab events (Units I-IV) to normal ones (Units V-VIII). They begi damages done by chattels or by a human being, thefts and other s misappropriation of the property of others, with special attention 1 we restore to a state of normality the property and person of the party. This large unit runs through the whole of Baba Qamma ai the middle of Baba Mesia, down through M. B.M. 5: 11. The seco of the three tractates covers normal events-labor relationships, and bailments, then a huge unit on real estate transactions, and, attention to inheritances and estates. That the intent is to produ complementary constructions, covering what we may call, general normal or illicit, then generally normal or licit, transactions, is sho the correspondence of Unit IV, illicit commercial transactions (over and usury), and Unit VII, licit commercial transactions (the legal t of goods, unstipulated conditions and how they are enforced). This plan may also explain why we have two distinct treatments of bail III.C, on damages to bailments, and V.C, E, on the responsibili the bailee.

Baba Qamma I. Damage ~ Chattels. 1: 1-6: 6 A. Thefundamental rules of assessingdamageswhen the causais one'spi animateand inanimate. The ox. 1: 1-2: 6 1 : 1 There are four generative causes of damages: ox, pit, crop-des beast, and fire. While they differ, they have in common the trait tl do damage and one is responsible for what they do. 1 : 2 In the case of anything of which I am liable to take car

INTRODUCTION

TO BABA BATRA

5

deemed to render possible whatever damage it may do-whole or in part. Exceptions: property held by the cult, not held by Israelites, not actually owned, and what is located in the domain of the defendant (whose property has caused the damage). 1 : 3 Assessment of compensation for injury is in terms of ready cash, but it is paid in kind. 1 :4 These five are deemed harmless (so that, if they do damage, the owner pays only half-damages, with liability limited to the value of the carcass of the ox which did the damage), and these five are deemed attested dangers (so that liability is unlimited by the value of the ox which did the damage). In general: a beast is not regarded as an attested danger in regard to butting, pushing, biting, lying down, or kicking. The tooth is an attested danger to eat whatever is suitable for eating, and the like. 2: 1 Exposition of M. 1: 4: How is the leg deemed an attested danger in regard to breaking something as it walks along? 2: 2 Exposition of M. 1:4: How is the tooth deemed an attested danger in regard to eating what is suitable for eating? 2: 3 The dog or goat which jumped from the top of the roof and broke utensils-the owner pays full damages, because they are attested dangers. If the dog took a cake which had a cinder attached and ate the cake and set fire to grain, for the cake the owner pays full damages, and for the standing grain, half. The former is what the dog is liable to do, the latter is unusual. 2:4 What sort of animal is deemed harmless, and what is one which is an attested danger? The procedure for declaring a beast an attested danger. 2:5 Exposition of M. 1:4: An ox which causes damage in the domain of the one who is injured is liable-how so? If it happened in public domain, the owner pays half damages, but if it was in the domain of the injured party, he pays full damages. 2: 6 Man is perpetually deemed to be an attested danger, under all circumstances.

B. Damagesdonein the public domain. 3:1-3:7 3: 1 He who leaves a jug in the public domain and someone else came and stumbled on it and broke it-the latter is exempt. If the jug did damage, the one who left it there is liable. 3: 2-3 He who pours water into the public domain, and someone else was injured on it, is liable. Five-part construction makes the single point that one who creates a hazard in the public domain is liable for damages. 3: 4 Two pot-sellers going along in single file, the first stumbled and fell and the second stumbled over the first-the first is liable to compensate the second for his injuries. He did not warn the other. 3: 5 This one comes with his jar, and that with his beam-if the jar of this one was broken by the beam of that, the owner of the beam is exempt, for he had every right to walk along where he did, just as did the other. 3: 6 Two going along in the public domain, one running, the other ambling, or both running, and they injured one another-both exempt. Both have every right to be there. 3: 7 He who chops wood in private property and the chips injured someone in public domain, or contrariwise, is liable.

6

INTRODUCTION

TO BABA BATRA

C. Exercises and illustrationson the ox. 3: 8-4: 4 3: 8 The oxen generally deemed harmless which injured one anotr. owner pays half-damages of the excess of the value of the injut by the less injured to the more injured ox. If both were attested c the owner pays full damages for the excess. Further exercises on tb play between the one deemed harmless and the one which was an danger. 3:9 Meir and Judah on the interpretation and application of Ex 3: 10 There is he who is liable for the deed of his ox and exe account of his own deed or exempt for the deed of his ox and li account of his own deed. The principles illustrated are that man humiliation, but oxen do not; that the rule of Ex. 21 :26-7 applie1 owner, not to the beast; and that one is not liable for the deathand for damages simultaneously. 3: 11 A triplet which uses the facts of this unit to illustrate the pro1 that the one who lays claim against his fellow bears the burden oJ 4: 1 An ox deemed harmless which gored four or five oxen, 01 the other-pays compensation to the last among them, next to the nex last, and so on. 4:2 An ox which is an attested danger as to its own species, but attested danger as to what is not its own species-for that for whi an attested danger, the owner pays full damages, and for that for wh not an attested danger, he pays half-damages. 4: 3 An ox of an Israelite which gored an ox belonging to the sa -the owner is exempt, since Ex. 21 : 35 excludes oxen belonging sanctuary. The same is so for a gentile. Illustrated: M. 1 :2. 4: 4 An ox of a person of sound senses which gored an ox be] to a deaf-mute, idiot, or minor-the owner is liable. But one belongi deaf-mute, idiot, or minor which gored an ox belonging to a pe sound senses-the former is exempt. Procedure for declaring an ox be] to a deaf-mute, etc., to be attested danger.

D. The ransomand the death-penalty for the ox. 4: 5-5: 4 4: 5 An ox which gored a man who died-if it was an attested the owner pays the ransom price. If it was deemed harmless, he is exf 4: 6 An ox which was rubbing itself against a wall, and the wall f man-if it had intended to kill another beast and killed a man, etc., is exempt. 4:7 An ox belonging to a woman, an estate, a guardian, etc., oxen are liable to the death-penalty. 4: 8 An ox which goes forth to be stoned and which the owner d to be sanctified is not sanctified, and if the meat is properly slaught is nonetheless prohibited. But if this was before the court-proce complete, it is sanctified, the meat is permitted. 4: 9 If one handed an ox to a bailee, the bailee takes the place of the 5: 1 An ox deemed harmless which gored a cow, and a neW calf was found dead beside her, so we do not know whether or not killed the calf-the owner pays half-damages for the cow, and c damages for the calf. 5: 2-3 The potter who brought his pots into the courtyard of a

INTRODl

"CTIO'.: TO DABA BATRA

7

holder without permission, and the beast of the householder broke themthe householder is exempt. If the beast was injured on them, the owner of the pots is liable. If the householder gave permission, however, he bears liability. 5: 4 An ox intending to gore its fellow which hit a woman and caused a owner of the ox is exempt from paying compensation for miscarriage-the the offspring.

E. Damages donef::ythe pit (M. 1: 1). 5: 5-7 5: 5 He who digs a pit in private domain and opens it into public domain, or in public domain and opens it into private, or in private and opens it into priYate, is liable for damage done by pit. 5: 6 A pit belonging to partners, and one passed it and did not cover it, and the second did likewise-the second is liable. 5: 7 All the same are an ox and all other beasts so far as falling into a pit (and various other biblical references to an ox) are concerned. Why is an ox specified?

F. Crop-destrryingbeast (M. 1: 1). 6: 1-3 6: 1-2 He who brings ,l flock into a fold and shut the gate properly, but the flock got out and did damages is exempt. If he did not shut the gate properly, he is liable. 6: 3 He who stacks sheaves in the Jield of his fellow without permission owner of the field is and the beast of the owner of the field ate them-the exempt. (Cf. M. 5: 2).

G. Damages donef::yfire (M. 1: 1).

6: 4-6

6:4 He who causes a Jire to break out through the action of a deaf-mute, etc. 6: 5 He who sets fire to a st;ick of grain, in which utensils were locatedJudah: T'he one who lit the lire pays compensation for whatever was in tht: stack which burned up. Sages: Only for the stack of wheat. 6:G ,\ spark which flew out fron, under the hammer and did damagethe smith is liable.

II. DatJJagesdone by persons. Theft. 7:1-10:10 A. Penaltiesfor the theft r/ an o:xor a sheep,in line with E:x. 22: 1-4. 7: 1-7 7: 1 More encompassing is the rule covering payment for twofold restitution than the rule covering payment of fourfold or fivefold restitution. 7:2 If one stole an ox or sheep on the evidence of two witnesses and was convicted of having slaughtert:d or sold it on the basis of their tt:stimony, or on the basis of the testimony of t,vo other witnesses, he pays fourfold or l1vefold restitution. If he stole or sold an ox or sheep on the Sabbath, etc., he pays fourfold or fivefold restitution. : 3 If he stole an ox or sht:ep on the evidence of two witnesses and slaughtered or sold it on the basis of their testimony, and they turned out to be false witnesses, they pay full restitution. 7: 4 If one stole on the evidence of two and was accused of having slaughtered or sold the ox or sheep on the basis of only one witness, he pays twofold restitution but not fourfold or fivefold restitution.

8

INTRODUCTION

TO BABA BATRA

7: 5 If one sold all but one hundredth part of the stolen ox o: he pays twofold restitution but not fourfold or fivefold restitution 7 : 6 If the sheep was dragging a sheep or ox but it died in the of the owner, he is exempt. If he lifted it up or removed it from the of the owner and then it died, he is liable. [7: 7 They do not rear small cattle in the Land of Israel, but they , Syria and in the wastelands which are in the Land of Israel.]

B. Penaltiesfor assault. 8: 1-7 8: 1 He who inflicts injury on his fellow is liable for comp< on five counts: injury, pain, medical costs, loss of income, and indi: 8: 2 Continuation of foregoing. 8: 3 He who hits his father or mother but did not make a wow is liable on all counts. 8: 4 A deaf-mute, idiot, and minor-meeting up with them i: thing. He who injures them is liable, but they who injured other pe, exempt. 8: 5 He who hits his father or mother and did make a wound is , because he is tried for his life. 8: 6 He who boxes the ear of his fellow pays a se/a; if he smack with the back of his hand, four hundred : he pays two hundred 8: 7 Even though the defendant pays off the plaintiff, he still seek forgiveness. If one says, "Blind my eye," the one who does is liable.

zuz;

C. Penaltiesfor damagesto properry. Restoringwhat is stolen. 9: 1-1C 9: 1 He who steals wood and made it into utensils pays compc in accord with the value of the wood at the time of the theft. 9: 2 If he stole a beast and it got old, he pays compensation in with the value at the time of the theft. 9:3 If he gave something to a craftsman to repair and the obj spoiled, the craftsman is liable to pay compensation. 9: 4 He who hands over wool to a dyer and the dye in the c burned the wool-the dyer pays the value of the wool. 9: 5 He who stole something from his fellow worth a perutah a an oath that he had stolen nothing and then wants to make restitutic take the object to him, even all the way to Media. 9: 6 If the thief paid back the principal but not the added fifth, not do so. If he paid back the added fifth but not the principal, h to do so. 9: 7 If he paid back the principal but swore falsely about the add and then confessed, he has to pay back an added fifth on the added 9: 8 If a person denied having a bailment and takes an oath falE then witnesses testify that the oath was false, he pays twofold rest Had he confessed on his own, he would have had to pay back the pt an added fifth, and a guilt-offering. 9: 9-10 He who steals from his father and takes an oath fo hir he did not do so), and then the father died pays back the principal an, fifth to the other sons or brothers. 9: 11 He who steals from a proselyte and takes an oath to him a.

INTRODUCTION

TO BABA BATRA

9

the proselyte dies-lo, this one pays the principal and added fifth to the priests, in line with Num. 5: 8. 9: 12 If he had paid over the money to the men of the priestly watch on duty and then died, the heirs cannot retrieve the funds from the priests, Num. 5: 10. since it is said 10: 1 He who steals food and gives it to his children-they are exempt from making restitution. 10:2 If tax-collectors took one's ass and gave him another, lo, it is his, because the original owners have given up hope of getting it back. 10:3 He who recognizes his utensils or books in someone else's possession and a report of theft had circulated-the purchaser takes an oath to him specifying how much he had paid the thief, then the original owner pays that price and retrieves his property. 10:4 If one suffered a loss to help someone else save his property, he can claim only wages, unless he had established a prior condition for compensation for his loss. 10: 5 He who stole a field from his fellow, and bandits siezed it from him-if it is a blow from which the whole district suffered, he may say to the original victim, "Lo, there is yours before you." 10:6 He who stole or borrowed something from his fellow or .with whom the latter deposited something in a settled area, may not return it to him in the wilderness. 10:7 He who says to his fellow, "I have stolen from you, and I don't know whether I returned the object or not," is liable to pay restitution. 10: 8 He who steals a lamb from a flock and returned it and the lamb died or was stolen again is liable to make it up. 10: 9 They do not purchase from herdsmen wool, milk or kids, since these are likely to have been stolen from the owner of the flock. 10: 10 Shreds of wool which the laundryman pulls out belong to him. Those which the woolcomber pulls out belong to the householder.

+

Baba Mesia III. The dispositionof otherpeoples'possessions. 1: 1-3: 12 A. Conflictingclaims on lost oijects. 1: 1-4 1: 1-2 Two lay hold of a cloak-both take an oath and they divide it. If one party concedes the claim to the other for part, only the other part, not conceded, is subject to an oath. 1 :3-4 If one was riding on a beast and saw a lost object and said to his fellow, "Give it to me," but the other took it and said, "I take possession of it" -the latter has acquired possession of it.

B. Returning an objectto the originalowner. 1 : 5-2: 1 1: 5 Things found by someone's dependents belong to him. Things not found by his dependents do not. 1: 6-8 If one found bonds of indebtedness, he should (not) return them. Lists of commercial papers and documents not to be returned. 2: 1-2 What lost items are the finder's, and which ones is he liable to proclaim (seeking the owner)? 2: 3-4 If one found pigeons tied together behind a fence, he should

10

INTRODUC'I'ION

TO BABA BATRA

not touch them. If there is evidence that an object belongs to somi should not be touched. 2: 5 Exegesis of Deut. 22: 2: Everything which has distinctive and which is subject to a claim must be returned to the owner. 2: 6 And for how long is one liable to make proclamation of found an object? 2: 7 If a claimant has described what he has lost but has not S' distinctive marks, one should not give it to him. 2:8 Taking care of objects one has found, pending return to the: owner. 2:9 What is lost property (which must be returned?) 2: 10 The limits of one's responsibility to retrieve an animal and it to the owner. 2: 11 If one has to choose between seeking what he has lost an his father has lost, his own takes precedence.

C. Rules of bai!ment. 3 : 1-12 3: 1 He who deposits a beast or utensils with his fellow, and the stolen, if the bailee made restitution and was unwilling to take a and the thief was found, he pays restitution to the bailee. If not, the owner. 3: 2 He who rents a cow from his fellow and then lent it to s< else, and it died of natural, causes, the one who rented it takes an rn it died of natural causes, and the one who borrowed it pays compe1 3: 3-5 If one said to two people, The father of one of you de money with me, and I don't know which one it was, he pays a maneh of them, for he has admitted it on his own. Two further cases of b where there is a conflicting claim. 3: 6 He who deposits produce with his fellow-even if it is g, waste, the fellow should not touch it. 3 : 7-8 He who deposits produce with his fellow-the baile{ returning it may take reductions due to natural depletion or the action< 3: 9 He who deposits a jar with his fellow, and the owner did not a place for it, and it was moved and broken ... 3: 10 He who deposits coins with his fellow, if the latter did n to them properly, he is responsible. He did not take care of them ordinary way. If he did, he is not liable to make them up. 3: 11 He who deposits coins with a money changer. 3: 12 He who makes use of a bailment: assessing compensation.

IV. Illicit com1nercia! transactions. 4: 1-5: 11 A. Overchargeana misrepresentation. 4: 1-12 4: 1-2 Coins do not acquire commodities, but commodities do coins. Gold, a commodity, acquires silver coins. Thus if the buyer ha acquisition of produce but the coins were not paid over, the buyer retract. 4: 3 Overreaching (fraud) constitutes an overcharge of four of silver out of twenty-four-one sixth of the purchase price. Ho may one retract in the case of fraud? 4:4 Both buyer and seller are subject to the rules of fraud.

INTRODUCTION

TO BABA BATRA

11

4: 5 How much may a sela be defective and still not fall under the rule of fraud? 4: 6 How long is it permitted to return a defective coin? 4: 7-8 Defrauding involves an overcharge of four pieces of silver to a sela, and a claim involving a court-imposed oath, etc. Formal construction. 4: 9 These are matters which are not subject to a claim of fraud on account of overcharge: slaves, bills of indebtedness, real estate, and what has been consecrated. 4: 10 A claim of fraud applies to the spoken word. One may not say to a storekeeper, "How much is this object"? when he does not plan to buy it. 4: 11-12 They do not commingle one sort of produce with another sort of produce (and so adulterate what is for sale).

B. Usury. 5:1-11 5: 1 What is interest, and what is increase? 5: 2 He who lends money to his fellow should not live in his courtyard for free. 5: 3 If one sold him a field and the other paid part of the fee, and the vendor said to him, "Whenever you want, bring the rest of the money and then take the field" -it is forbidden. If one lent money on the security of the field and said, "If you do not pay me by this date three years hence, lo, it is mine" -it is his. 5: 4 They do not set up a storekeeper for half the profit, unless one pays him an additional wage as a worker. Otherwise his free service to the partner constitutes usury. 5: 5 They assess and put out for rearing a cow, an ass, or anything which works for its keep for half the profits. The rancher gets the benefit of the animal's labor, so the capitalist does not have to pay for the rancher's service in addition. 5: 6 They do not accept from an Israelite a flock on 'iron terms,' that the one who tends the flock pays a fixed fee and restores the value of the flock as it was when it was handed over to him, because this is interest. There must be an equal sharing in the risks and profits. 5: 7 They do not strike a bargain for the price of produce before the market-price is announced. This is 'increase' (M. 5: 1). 5: 8-9 A man may lend his tenant-farmers wheat to be repaid in wheat if it is for seed, but not if it is for food. 5:10 A man may say to his fellow, "Weed with me, and I'll weed with you," but not, "Weed with me, and I'll hoe with you." 5: 11 Those who participate in a loan on interest violate a negative commandment.

V. 1-firingworkers. Rentals and bai!ments. 6: 1-8: 3

A. The mutual obligationsof worker and emplo_yer. 6: 1-2 6: 1-2 He who hires craftsmen and one party deceived the otherhas no claim on the other except a complaint.

one

B. Rentals. 6: 3-5 6: 3 He who rents out an ass to drive it through hill-country but drove it through the valley, or viceversa,and the ass died, is liable.

12

INTRODUCTION

TO BABA BATRA

6: 4-5 He who hires a cow to plough in the hill-country but pl in the valley, if the ploughshare was broken, is exempt. If he hired 1 to plough in the valley and ploughed in the hill-country, if the plou, was broken, he is liable. C. Bail ments. 6: 6-6: 8 6: 6 All craftsmen are in the status of paid bailees. But any wl "Take what is yours and pay me," enters the status of an unpaid ba 6: 7 If one made a loan and took a pledge, he is in the status o: bailee of the pledge. 6: 8 The bailee who moves a jar from one place to another am it, whether unpaid or paid, must take an oath (that the jar was brc accident).

D. The mutual obligationsof worker and employer. 7: 1-7 7: 1 He who hires day-workers and told them to start work < stay late-in a place in which that is not the custom, he has no right t, 7: 2-3 And these have the right to eat the produce on which t working, a right endowed by the Torah. 7: 4 If the laborer was working on figs, he has not got the rigb grapes. 7: 5 A worker has the right to eat cucumbers, even to a denar's or dates, even to a denar's worth. 7 : 6 A man makes a deal with the householder not to exercise b to eat produce on which he is working, in behalf of himself or othe1 but not in behalf of minors. 7: 7 He who hires workers to work in his fourth-year plantir these do not have the right to eat. If he did not tell them in advanc the character of the crop, he has to provide food for them. E. Bai!ments. 7: 8-8: 3 7: 8 There are four kinds of watchmen: unpaid bailee, borrow, bailee, hirer. Unpaid bailee takes an oath in all cases; borrower pa) circumstances of damages to a bailment; paid bailee and hirer take ~ 7:9-11 A single wolf does not count as an unavoidable accide do (and the paid bailee and hirer do not have to pay in the latter cast 8: 1 He who borrows a cow and borrowed the service of its with it and the cow died-the borrower is exempt. 8:2 He who borrows a cow, borrowed it for half a day and · for half a day, etc., and the cow died--the lender claims, "The be cow died," or, "At the time it was borrowed, it died," and the b< says, "I don't know"-the borrower is liable (as at M. B.M. 1: 1). 8: 3 He who borrows a cow and the one who lent it sent it alo1 his son, slave, or a messenger, and the cow died-the borrower is , for it had not yet reached the domain of the borrower. VI. Real estate. B.M. 8:4-10:6. B.B. 1 :1-5:5 A. Prologue. 8:4-5 8: 4 He who exchanges a cow for an ass, and the cow produced o -this one says, "It was before I made the sale," and that one says,

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13

after I made the purchase-let them divide the proceeds. Also: purchase of two fields, one big, one small. 8: 5 He who sells olive-trees for firewood and before they were chopped down they produce a small quantity of fruit-lo, this belongs to the owner of the olive-trees (not to the landowner). Conflicting claims (as above).

B. Landlord-tenantrelationships. 8: 6-9 8: 6 He who rents a house to his fellow without a lease in the rainy season has not got the right to evict him from the Festival to Passover. 8: 7 He who rents out a house to his fellow is liable to provide a door, bolt, and lock, and anything made by a craftsman, but the one who rents the house can provide anything not made by a craftsman. 8: 8 He who rents out a house to his fellow for a year-if the year is intercalated, it is intercalated to the advantage of the tenant. If it is rented by the month, it is intercalated to the advantage of the landlord. 8:9 He who rents out a house to his fellow, and the house fell down, is liable to provide him with another house of the same character. C. The landlord'srelationshipswith a tenantjarmer and sharecropper. 9: 1-10 9: 1 He who leases a field from his fellow-in a place in which it is the custom to cut the crops, he must cut them. If it is the custom to uproot them, he must uproot them. 9: 2 He who leaves a field from his fellow which is irrigated or an orchard -if the water-source went dry, or the trees were cut down, the tenant may not deduct the damages from the rental. 9: 3 He who as a sharecropper leases a field from his fellow and then neglected the field-they make an estimate of how much the field is suitable to produce, and the tenant pays that. 9: 4 He who leases a field from his fellow and did not want to weed itthey pay no attention to his claim. 9: 5 He who leases a field from his fellow and it did not produce a crop still has to tend it. 9 :6 He who leases a field from his fellow and locusts ate it up-if it was a disaster affecting the entire province, he may deduct the damages from his rental. 9: 7 He who leases a field from his fellow in return for ten kors of wheat a year, and the field was smitten and produced poor quality grain-the tenant pays him off from produce grown in that field anyhow. 9: 8 He who leases a field from his fellow to sow barley in it may not sow it with wheat. 9: 9 He who leases a field from his fellow for a period of only a few years may not sow it with flax. 9: 10 He who leases a field from his fellow "for one septannate" at the rate of seven hundred zuz-the Seventh Year counts in the number of years. If he leased it from him for seven years, it does not.

D. Miscellanies:Pqying laborersprompt!_y.Taking a pledge. 9:11-13 9: 11 A day-worker collects his wage any time of the night, and a nightworker by day. 9: 12 The fee owing for a worker, a beast, or a utentil must be paid promptly.

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9: 13 He who lends money to his fellow should exact a pledge fr only in cout.

E. Joint-holdersof a commonproperty. B.M. 10: 1-6. B.B. 1: 1-6 10: 1 A house and an upper story belonging to two people wl down-they divide the ruins. 10: 2 A house and an upper story belonging to two people-if t of the upper room was broken and the householder does not want t it-lo, the owner of the upper story goes and lives downstairs. 10: 3 A house and an upper story belonging to two people wl down-if the resident of the upper story told the householder to but he does not want to rebuild, lo, the resident of the upper story : the lower story and lives there. 10: 4 So too an olive-press built into a rock. 10: 5 He whose wall was near the garden of his fellow and it fel and the owner of the garden said to him, "Clear out your stones", other said to him, "They're yours"-they pay no attention to him. 10: 6 Two terraced gardens, one above the other, with ve 1 between them-Meir: They belong to the garden on top; Judah: one on the bottom.

Baba Batra 1: 1 Joint-holders to a courtyard who wanted to make a part the courtyard build the wall down the middle. 1 : 2 So is the rule in the case of a garden. 1 : 3 He whose land surrounds that of his fellow on three sides a made a fence on those sides-they do not require the other party 1 in the expense. If the other party completed the fourth wall, they 1 : 4 The wall of a courtyard which fell down-they require each in the courtyard to help rebuild it. 1 :5 They force a jointholder in the courtyard to contribute building of a gate-house and a door for the courtyard. 1 : 6 They do not divide up a courtyard unless there will be an four cubits by four for each party.

F. Not infringingtheproperty rights of others. 2: 1-14 2: 1 One may not dig a cistern near that of his fellow. 2: 2 A person should not set up an oven in a room unless there is of four cubits above it. 2: 3 A person should not open a bake-shop or dyer's shop un grain-store of his neighbor. 2:4 He whose wall is near the wall of his fellow may not build wall near it unless he sets it four cubits back. 2: 5 They set up a ladder four cubits from the dovecot of one's m so that the marten will not jump into the dovecot. 2: 6 A fallen pigeon which is found within fifty cubits-lo, it to the owner of the dovecot. 2:7 They keep a tree twenty-five cubits from a town. 2: 8 They set up a permanent threshing-floor fifty cubits from

INTRODUCTION

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2: 9 They put carrion, graves, and tanneries from a town. 2: 10 They put a pool for steeping Bax away 2: 11 They set up a tree twenty-five cubits 2: 12 A person may not plant a tree near his it four cubits away. 2: 13-14 A tree which stretches over into the cuts it away.

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at least fifty cubits away from a vegetable patch. away from a cistern. fellow's field unless he set field of one's fellow--one

G. Establishi1ll,title to a field throughttsucaption. 3: 1-8 3: 1 Title by usu caption of houses, etc., is established in three years. 3: 2 If the contesting owner was out of the district, there is no securing title through usucaption. 3: 3 Any act of usucaption along with which there is no claim on the property is not an act of securing title through usucaption. 3: 4 False witnesses and usucaption. 3: 5 What are usages which are effective in the securing of title through usucaption. 3: 6 A gutter-spout does not impart title through usucaption, but may be moved. 3: 7 A person should not open his windows onto the courtyard of which he is one of the joint--holders. 3: 8 They do not hollow out a space under the public domain.

II. Transferringreal estate (and v1ovables)throughsale. 4: 1--5:S 4: 1-2 He who sells a house has not sold the extension, cistern, etc. 4: 3 He who sells a house has sold the door but not the key. 4:4 He who sells a courtyard has sold the houses but not the movables. 4: 5 He who sells an olive-press has sold the vat but not the pressing boards. 4: 6 He who sells a bath-house has not sold the hoards. 4:7 He who sells a town has sold the houses but not the movables. 4: 8 He who sells a field has sold the stones. 4: 9 But he has not sold ... 5: 1 He who sells a ship has sold the mast ... , but not the slaves. 5: 2 He who sells an ass has not sold its trappings. 5: 3 He who sells an ass has sold the foal. 5 :4 He who buys two trees in his fellow's field has not bought the ground on which they are growing. 5: 5 He who sells the head of a large beast has not sold the feet.

VII. Licit commercialtransaclions. 5: 6-7: 4 A. Conditionsof irrevocabletransfer of goodr. 5: 6-11 5: 6 Rules for those who sell: If one has sold wheat as good and it turns out to be bad, the purchaser can retract. If it was sold as bad and turns out to be good, the seller can retract. If it was sold as bad and is bad, neither can retract. 5: 7 He who sells produce to his fellow---if the buyer drew it but did not measure it, he has acquired possession of it. If he measured it but did not draw it, he has not acquired possession.

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5: 8 He who sells wine or oil to his fellow, and the price rose if this took place before the measure belonging to the purchaser h filled up, the price advantage goes to the seller. 5: 9 He who sends his child to the storekeeper with a pondionin his liability for loss. 5: 10-11 A wholesaler must clean off his measures once in thir1 a householder once every twelve months.

B. Unstatedstipttlationsin commercialtransactions. 6: 1-7: 4 6: 1 He who sells produce to his fellow and the grain did not SJ not liable to make it up. He can claim it was food. 6: 2 He who sells produce to his fellow-lo, the buyer must a accept a certain proportion in spoilage. 6:3 He who sells wine to his fellow, which went sour, is no to make it up. But if it was known that this would happen, then it is a p made in error and null. 6: 4 He who sells a piece of property to his fellow for building a l the contractor must build it at least four by six, so 'Aqiba. Ishmael: too small, it must be six by eight. 6: 5-6 He who has a cistern behind his fellow's house goes ii people usually go in and goes out when people usually go out. 6: 7 He who had a public way passing through his field. 6: 8 He who sells a piece of property to his fellow for a family i the contractor makes it in the given dimensions, for a given number c 7: 1 He who says to his fellow, "I am selling you a kor's area o: land"-if there were crevices ten handbreadths deep, etc., they are eluded in the measurement of the area. If he said, "Approximate then they are included. 7: 2 If he said, "A kor's area I am selling, measured by a rope, gave any less, the purchaser may deduct the difference. 7: 3 If he said, "I am selling you a kor's area, measured by a rope, , less or more," one expression nullifies the other. 7 : 4 If he says, Half a field I sell to you-they divide the field into p of equal value.

VIII. Inheritancesand Wills. Other commercialand legaldocuments. 8: 1A. inheritance. 8: 1-9: 10 8: 1 There are those who inherit and bequeath, do one but not th1 and do neither. 8: 2 The order of the passing of an inheritance is thus + Num. : 8: 3 The daughters of Zelophehad took three portions of the inhe 8: 4 All the same are the son and the daughter as to matters of inhe 8:5 He who says, "My first born son will not receive a double p, has said nothing, for he has made a stipulation contrary to what is in the Torah. But if one gives away his property, the gift is valid, w its character. 8: 6 He who says, "This is my son," is believed. If he said, "Thi brother," he is not believed. 8: 7 He who writes over his property to his sons has to write, today and after death," so Judah. Yose: He does not.

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8: 8 If someone left adult and minor children, they divide the estate equally. 9: 1 He who died and left sons and daughters-when the estate is large, the sons inherit and the daughters are supported. 9: 2 He who left sons and daughters and a child whose sexual traits were not clearly defined-the latter is classed with the females in a large estate, while the males in a small estate. 9 :3 If he left adult and minor sons, if the adults improved the value of the estate, the increase is shared by all, unless they stipulated otherwise. 9: 4 If one of the brothers fell into public service, the charge or benetit falls to the estate. 9:5 He who sends gifts to his father-in-law's household. 9: 6 A dying man who wrote over his property to others but left himself a piece of land-his gift is valid. 9: 7 He who divides his property by word of mouth. 9:8-10 Inheritance in cases of doubt as to the sequence of deaths, e.g., father and son.

B. The preparalirmand confirmationof commercialdocmnents,e.g., writs of deb!. 10: 1-6 10: 1-2 Lnfolded and folded documents: how they are prepared and witnessed. 10:3-4 They write out a writ of divorce for a man even though his wife is not present, and a quittance for the wife, even though the husband is not present. Various other rules for scribes on preparing documents and payment of the scribal fee. 10:5 He who paid part of a debt which he owed and who deposited the bond with a third party. 10: 6 He whose writ of indebtedness was blotted out but who had witnesses to confirm what was in it.

C. Concludingmiscdla11ies. 10: 7-8 10:7 Two brothers, one poor, one rich, whose father left them a bathhouse or olive-press. Two men who have identical names and the disposition of bonds for each. Be who admits one of his bonds has been paid off but does not know which one. Collecting a debt from the guarantor of the loan. 10: 8 He who lends money on the security of a bond of indebtedness collects what is owing from mortgaged property; if there are only ,vitnesses, he collects from unindenturecl property; if he has the debtor's note of hand, he collects from unindentured property. Tshmael: He who wants to get smart bad best get busy with commercial law.

The layout of Baba Batra is simple and predictable. The first half simply completes the topic undertaken in the preceding tractate, through VT.H. Then there are further units, one on licit commercial transactions, by contrast to Unit !V's special interest in damages done through overcharge and usury, and, finally, inheritances, wills, and documents. This last unit at the end pays special attention to bonds of indebtedness. The subdivision of the three units is equally logical, although why one

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unit must come before or after some other is not always self-evid unit on real estate treats landlord-tenant relationships, B, C, a1 relationships between jointholders of a common property, E, F. ( the intrusion of D between these two units is yet another exampli puzzling phenomenon of the arrangement of Unit V.) The final · Unit VI turns to transferring title of real estate through usucapt through sale. The reason these are treated in the present order, ( that the next unit continues the theme of sale of property, now witl to movables, rather than real estate. So clearly there is a governing f that we move as smoothly as we can from one theme to the next, on side, or from one problematic to the next, on the other. In the pres, there is a smooth fl.ow of the governing problematic, transferring o" from one party to another. · That same consideration then governs the arrangement of Ut since VII.A carries forward VI.H. The fact that VII.B conclud . attention to the division of a field surely cannot be entirely ir: to the choice of the topic to follow, which is matters of inherita division of estates. That leaves for the end the issue of docw evidence of inheritance, concluding VII.A, then commercial doc with special attention to writs of debt, VIII.B. It seems to me th~ redactors' intent is to allow for a smooth fl.ow from one major tl the next, they have wholly succeeded. The order and simplicity of the plan, not solely for the present 1 but for the entire sequence of the tractates of the civil law, torts, d: real estate and commercial transactions, in all of their diversity ar plexity, are striking. The plan of the whole is elegant as the framer three tractates obviously wanted it to be.

CHAPTER TWO

BABA BATRA CHAPTER ONE Continuing Baba Mesia Chapter Ten, in this exercise the rights and responsibilities of joint-holders of a courtyard ur of neighbors in a gardenpatch are spelled out. M. 1: 1-2, a triplet, explain how joint-holders of a courtyard may divide it up, with special attention to provision for the building of a wall; each party supplies half of the materials and half of the requisite space. M. 1: 2 says the same of a garden-patch. M. 1: 3 provides an appendix to the foregoing. It provides procedures for assessing the costs of building a wall on the part of a landowner whose property surrounds another's land on three sides. The man has to pay the whole cost and provide the land. But if the other party completes the wall on the fourth side, then he is assumed to want to share in the benefits of the existing wall and therefore must bear his share of the cost. M. 1 : 5 speaks of other shared responsibilities of joint-holders of a courtyard. M. 1 : 6 presents a :five-part rule on dividing up a courtyard and other sorts of property, with special reference to the minimum to be subject to division. T. to the chapter is long and not always readily accessible; it goes its own way more often than not. Tosefta Baba Mesia Chapter Eleven supplies all T. to this chapter. Tosefta Baba Batra begins in Mishnah Baba Batra Chapter Two. 1:1-2 A. Joint-holders [to a courtyard] who wanted to make a partition in the courtyard B. build the wall in the middle. C. In a place in which they are accustomed to build it of unshaped stones, ,J:\KKOT CHAPTER

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R. I :/eazar says, "If he removedall of it at once, he is liable only on one [M. 3:SG]. V. [If] he raises up [ a hair] and removes it, raises it up and removes it, he is liable for each one. W. BNt he is liable only if he 1vi!lremoveit with a razor [ M. 3: SH]. X. If he removed it with scissors or with an adze, he is exempt [ cf. M. 3:SI]. Y. Rabban Simeon b. Gamaliel says in the name of R. Eleazar, "If he removed it with pincers, lo, this one is liable." T. 4: 10 Z p. 442, ls. 23-34 U.

CONllt"

A. He who makes a. baldness on the heacl I Tvl.3: SA) of his fellow--both of them are liable. B. Under what circumstances? C. When both of them did so deliberately. D. But if both of them did so inadvertently, both of thcn1. are exempt. E. lf one of them did so inadvertently and one of them did so deliberately, the one who did so inadvertently is exempt, and the one ,..;rhodid so deliberately is liable. T. 4: 11 Z pp. 442, ls. 34, 443, 1-2

A. He JJ/Uo11/ilkes a single bald spot on accotmiof jive differentcorpsesis !iah!e for each and evc1y()J/t of them [ cf. M. 3: SB, D]. B. R. Yose says, "He is liable only on one counL" C. IIf] he makes five bald spots on account of one corpse, he is liable for each and every cutting. D. And he is liable only if he will make a bald spot on account of a corpse. E. i\nd how much does he cut so as to be liable? Enough so that one can discern the place of the cutting. T. 4: 12 Z p. 443, ls. 2-5 A. He who rnakes a cutting on the flesh I M. 3: 5 ,\4] of his fellow--both of them arc liable. B. Under what circumstances? C. When both of them did so deliberately. D. But if both of them did so inadverte~tly, both of them are ex.empt. E. If one of them did so inadwrtently and one of them did so deliberately, the one who did so inadvertently is exempt, and the one wbo did so deliberately is liable. T. 4: 13 Z p. 443, ls. 5-8

A. He JFhu males a single cutting on accotm!of /i1·udifferent corpses is fiab!t for eachand 011c of' them [M. 3: SB, D]. B. R. says, "He is liable only on one count." C. [If he made] five cuttings on account of a single corpse, he is liable for each and every cutting. D. But he is liable only if he will make a cutting on a corpse. E. /\nd how much does he cut so as to be liable? Sufficient to be able to discern a single cutting. T. 4: 14 Z p. 443, ls. 7-10

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A. B.

He who tatoos the skin [ M. 3: 6A] of his fellowboth of them are liable. C. Under what circumstances? D. When both of them did so deliberately. E. But if both of them did so inadvertently, both of them are c F. [If] one of them did so inadvertently and one of them did so ately, the one who did so inadvertently is exempt, and the one whc deliberately is liable. G. But oneis not liableunlesshe makes the tatoowith ink or ryepaint [ M. H. for an idol. I. [If] he scraped him with a scalpel, he is exempt. J. And he who makes a mark on his slave, so that he will not ru. is exempt [ so far as the tatooing is concerned]. T. 4:15 Z p. 443, l: A. B.

He who cuts himself because of the dead[if he does so] with his hand [ e.g. fingernails], he is exempt. C. [ If he does so] with a utensil, he is liable. D. If he does so for an idol, whether he does so by hand or with a he is liable. T. 4: 16 Z p. 443, 1:

T. 4: 10 makes the distinction between one who violates the la reference to another party, and that other party. The victim, who h2 nothing, bears no liability. T. 4: 10 further begins the long seqm repeated statements about the distinction between violating a nc rule deliberately and inadvertently. T. proceeds to work its way t1 M.'s materials, making that same point over and over again, and tl traduces further, complementary rules, in order to repeat it still f T.'s further clarifications of M. require no comment. 1

3:7-8 I

A. A Nazirite who was drinking wine all day long is liable on o count. B. [If] they said to him, "Don't drink, don't drink!" yet he coi to drink, C. he is liable on each count.

A. [If a Nazirite] was contracting corpse-uncleanness all day le is liable on only one count. B. [If] they said to him, "Do not contract corpse-uncleanness! : contract corpse-uncleanness! " yet he continued to contract cor cleanness, C. he is liable on each count. III D. [If] he was shaving himself all day long, he is liable on only ont E. [If] they said to him, "Don't shave! don't shave! " yet he co1 to shave, F. he is liable on each count. II

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G. If someone was wearing a garment of diverse kinds (Lev. 19: 19, Deut. 22: 11) all day long, he is liable on only one count. H. [If] they said to him, "Don't put it on! don't put it on! "yet he took it off and then put it on, he is liable on each count.

M. 3:8 The point of the triplet on the Nazir is then restated for ordinary folk. The issue is clear, and the ruling familiar. A. A high priest who was unkempt or disheveled, B. or who contracted uncleanness on account of any of his relatives-lo, this one is liable. C. This is the governing principle: [ On account of] any sort of corpseuncleanness because of which a Nazir has to cut his hair, [ a high priest] is flogged with forty stripes. D. And [ on account of] any sort of corpse-uncleanness because of which a Nazir does not have to cut his hair, [ a high priest] is not flogged with forty stripes. E. But an ordinary priest who contracts uncleanness from other corpses [than relatives'], or who goes into a grave-yard, is liable. F. [If] he went into a field in which a grave has been lost, he is liable only when he will have traversed the entire field. G. [If] he went into a grave-area or out to survey the territory of the land of the peoples [ deemed to be unclean like a grave-area], or if he went abroad, H. they flog him with a flogging by reason of rebellion. I. Flogging [ administered because of violation of the law of the] Torah is forty stripes less one. J. They estimate the culprit [M. 3: 11]. If he is able to receive the flogging, he is flogged. K. If not, he is not flogged. L. But in the case of flogging administered by reason of rebellion against the law, it is not so. M. But they flog him until he accepts [the ruling of the court and agrees to carry it out], N. or until he perishes. T. 4: 17 Z p. 443, ls. 15-22

A-C complement M. 3:9A. I-N explain H's kind of flogging. A. He who muzzles the cow [in its threshing], B. and he who yokes up mixed species [ an ox and an ass] C. are exempt. D. You have none who is liable except the one who actually leads or drives them [M. 3:9B]. E. R. Eleazar says, "A Nazirite who put his mouth on the mouth of a jug of wine and drank the whole of it while subject to a single act of warning is liable only on one count. F. "[If] they warn him and he [nonetheless] drinks, warn him and he [nonetheless] drinks, he is liable on each and every act of drinking." G. And so did R. Eleazar says, "[If] he took a bunch of grapes and ate them all up while subject to a single act of warning, he is liable for only a single sin-offering.

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H. "[If] they warn him, and he eats of it, warn him and he ea he is liable for each and every [grape]." I. [If] he ate from it both fresh and dried grapes, J. ate from it two skins and a pit, K. or if he sucked from it L. so much as an olive's bulk of wine, and drank [ that wine], M. he is liable on each and every count. T. 5:1 Z p. 443, 1

A-D go over the ground of M. 3:4D. Eleazar's saying restates th ciple of M. 3: 7-8. 3:9 A. There is one who ploughs a single furrow and is liable o counts of violating a negative commandment: B. [ specifically, it is] he who (1) ploughs with an ox and an ass 22:10], which are (2, 3) both Holy Things, in the case of (4) [plo1 Mixed Seeds in a vineyard [Deut. 22:9], (5) in the Seventh Year [Lev (6) on a festival [Lev. 23:7] and who was both a (7) priest [Lev. 21 (8) a Nazirite [Num. 6: 6] [ploughing] in a grave-yard. C. J:Ianania b. J:Iakhinai says, "Also: He is [ploughing while] · a garment of diverse kinds" [Lev. 19: 19, Deut. 22: 11). D. They said to him, "This is not within the same class." E. He said to them, "Also the Nazir [B8] is not within the sa1 [ as the other transgressions]."

The transition from M. 3:1-6 to M. 3:10-16 is completed here, i case in which more than a single set of flogging is called for. B's J liable to 312 stripes, on the listed counts. The ox is sanctified to th the ass to the upkeep of the house (B 2, 3). J:Ianania's contribu rejected since it has nothing to do with ploughing, and sages' pos equally flawed. 3:10 A. B. C.

than] D. E. F.

How many times do they flog him? Forty stripes less one, as it is said, By number,Jorry(Deut. 25: 2, 3)-a number near [ forty. R. Judah says, "He is flogged a full forty times," And where does the additional one fall? Between the shoulders.

E-F, glossing D, take account of the arrangement of the striJ groups of three-laid out at M. 3: 11A, 13. 3:11 A. They make an estimate of his capacity to take the flogging [ being irreparably injured or killed] only by a number divisible by thn

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B. [If] they estimated him as able to take forty, [if] he then received part of the flogging, and they said that he cannot take all forty, he is exempt. II C. [If] they estimated him as able to take eighteen, [ and] once he has received the flogging [ of eighteen], they said that he can take all forty, he [ still] is exempt from the rest. III D. [If] he committed a transgression on which he is liable on two counts of violating negative commandments, and they make a single estimate [ of what he can take, covering both sets], E. he is flogged and exempt [from the other]. F. And if not, he is flogged and allowed to heal, and then goes and is flogged again. · M. 3:11 I

The point of interest is at D-F. If the man is liable to eighty and is subjected to an estimate covering all eighty, we invoke B, C. But if he is estimated for one flogging of forty at a time, B, C do not apply.

3:12-14 How do they flog him? One ties his two hands on either side of a pillar, and the minister of the community grabs his clothingif it is torn, it is torn, and if it is ripped to pieces, it is ripped to piecesE. until he bares his chest. F. A stone is set down behind him, on which the minister of the community stands. G. And a strap of calf-hide is in his hand, doubled and redoubled, with two straps that rise and fall [ fastened] to it. M. 3:12 A. Its handle is a handbreadth long and a handbreadth wide, B. and its end must reach to his belly-button. C. And he hits him with a third of the stripes in front and two thirds behind. D. And he does not hit [ the victim] while he is either standing or sitting, but bending low, E. as it is said, And thejudge will causehim to lie down{Deut. 25: 2). F. And he who hits him hits with one hand, with all his might. M. 3:13 A. B. C. D.

A. And a reader reads: If you will not observeto do ... the Lord will have _yourstripespronounced,and the stripes ofyour seed(Deut. 28:58ff.) (and he goes back to the beginning of the passage). And you wilt observethe words of this covenant(Deut. 29: 9), and he finishes with, But he is full of compassionand forgave their iniquity (Ps. 78: 38), and he goes back to the beginning of the passage. B. And if the victim dies under the hand of the one who does the flogging, the latter is exempt from punishment. C. [But if] he added even a single stripe and the victim died, lo, this one goes into exile on his account. D. If the victim dirtied himself, with whether with excrement or urine, he is exempt [from further blows].

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E. R. Judah says, "In the case of a man, with excrement; anc case of a woman, with urine."

The narrative is smooth and unadorned, down to the disputed

M. 3:14D, E. A. [If] one did a transgression which is subject to two counts of v negative prohibitions, B. they do not make an estimate of his capacity to take the flo~ cover both of them. C. But he is f!?ggedand healedand againis flogged[M. 3: 11F] D. [If] they made an estimate that he can take only forty strip do not add even one more stripe to that number. E. But they may take one off that number. F. [If] they made an estimate that he can take only twenty, they add even a single one to that number. G. But they take off two. H. Therefore if the minister added even a single stripe and the man this onegoesinto exile on his account[M. 3: 14C]. T. 5:12 Z p. 444, 1 If they made an estimate that he can take only three strip< even if he is standing there and defies [ them to lay on mon C. they do not add even a single one [ cf. M. 3: 11C]. D. Therefore if the minister added even a single stripe and the man this oneis sent into exile on his account. T. 5:13 Z p. 444, l A. B.

A. "They do not make an estimate of his capacity to take me forty stripes," the words of R. Judah. B. Said R. Yose, "Under what circumstances? C. "When he has been subject to a single act of testimony and act of warning. D. "But if he has been subject to two distinct acts of testimony : distinct acts of warning, E. "they make an estimate of his capacity to take even fifty anc hundred." F. Therefore if he had loose bowels because of one of them, G. they flog him. H. [If] they made an estimate of him that if he is flogged, he Vi loose bowels, they flog him. I. [If they made an estimate] that if he leaves the court, he w loose bowels, they flog him. J. [If] he had loose bowels before he was flogged, they [ none flog him, K. as it is said, [Then if the guilty man deservesto be beatenthe Jui causehim to lie downand be beatenin hispresencewith a numberof stripesin pi to his offence.Forry stripes mtrybegivenhim, but not more,·lest, if oneshould beat [him with more stripes than these,your brother] be degraded[in yo1 (Deut. 25: 2-3).

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L. [If] after he was flogged, he had loose bowels, they do not flog him [any more]. M. And in what does his dirtying himself consist? N. "All the same are the man and the woman: with excrement," the words of R. Meir. 0. R.jt1dah sqys, "In the case of a man, J1Jithexcrement, and in the case of a J1Joman, J1Jith11rine"[M. 3: 14F]. P. And sages say, "All the same are the man and the woman: whether the soiling is ,vith excrement or urine, he is exempt f from further flogging]"

[M. 3: 14E]. T. 5:14 Z pp. 444, ls. 32, 445, 1-7 A. Flogging is done by three men: one hits, one counts, and one reads [cf. M. 3:14A]. B. And they did not change the strap for him. C. And it was not long but short, D. so that it not touch the 'bird of life' [ the belly-button] and he die. T. 5: 15 Z p. 445, ls. 7-9

T. richly complements M. T. 5: 12 goes over the ground of M. 3: 11, insisting that separate estimates are made when more than a single round of flogging is called for. The rest covers familiar ground and links M. 3: 11 to M. 3: 14C. T. 5: 13 repeats the same operation. 1". 5: 14 concludes with an account of when there will be a single estimate for more than forty stripes, as specified by Yose. T. 5: 14-further goes over the matter of freeing the person who is being flogged if he or she urinates or defecates. T. 5: 15 reverts to the definition of the strap at _'.\;f.3: 13.

3:15-16 A. "All those who arc liable to extirpation who have been flogged are exempt from their liability to extirpation, B. "as it is said, /lnd J'OUrbrother seem vile to _you(Deut. 25: 3)C. "once he has been flogged, lo, he is tantamount to your brother," the words of R. I;Ianania b. Gamaliel. D. Said R. I;Ianania b. Gamaliel, "Now if one who does a single transgression--[ Heaven] takes his soul on that account, E. "he who performs a single religious duty--how much the more so that his soul ,vill be saved for [handed oyer to] him on that account" F. R. Simeon says, "From its own passage \Ve may learn that, G. "for tt is written, };ven the souls that do them shall be cut off (Lev. 18: 29). H. "And it is said, [Vhichif a man do he shall live by them (Lev. 18:4). I. "Lo, whoever sits and does no transgrcssion--they give him a reward like that which goes to one who [goes and I docs a religious duty." J. R. Simeon b. Rabbi says, "Lo, it says, Only be sure that you do not eat the blood,for the bloodis the life (Dcut. 12:23). K. "Now if blood, which the soul of man despises-he who keeps away from it 1·eceives a reward,

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L. "robbery and fornication, which the soul of a man desires a which he lusts-he who keeps away from them how much the m attain meritM. "for him, and for his descendants, and for the descendant descendants, to the end of all generations! " A. R. J:Janania b.