That cattle be permitted to pasture in woods;1 that wood may be gathered [by all] in private fields;1 that grasses may similarly be gathered [by all] in all places, with the exception, however, of a field where fenugrec is growing;1 that shoots be permitted to be cut off [by all] in all places. with the exception, however, of stumps of olive trees;1 that a spring emerging [even] for the first time may be used by the townspeople; that it be permitted to fish with an angle in the Sea of Tiberias, provided no sail is spread as this would detain boats [and thus interfere with navigation]; that it be permitted to ease one's self at the back of a fence even in a field full of saffron; that it be permitted [to the public] to use the paths in private fields until the time when the second rain is expected;2 that it be permitted to turn aside to [private] sidewalks in order to avoid the road-pegs; that one who has lost himself in the vineyards be permitted to cut his way through when going up and cut his way through when coming down;3 and that a dead body, which anyone finds has to bury should acquire [the right to be buried on] the spot [where found].
'That cattle be permitted to pasture in woods.' R. Papa said: This applies only to small cattle pasturing in big woods4 for in the case of small cattle pasturing in small woods or big cattle in big forests it would not be permitted,5 still less big cattle pasturing in small woods.5
'That wood may be gathered [by all] in private fields: 'This applies only to [prickly shrubs such as] Spina regia and hollow.6 For in the case of other kinds of wood it would not be so. Moreover, even regarding Spina Regia and hollow, permission was not given except where they were still attached to the ground, but after they had been already broken off [by the owner] it would not be so.7 Again, even in the case of shrubs still attached to the soil, permission was not given except while they were still in a wet state, but once they had become dry it would not be so.7 But in any case it is not permitted to uproot [them].
'That grasses may similarly be gathered [by all] in all places, with the exception, however, of a field where fenugrec is growing.' Does this mean to say that fenugrec derives some benefit from grasses?8 If so, a contradiction could be pointed out [from the following:] 'If fenugrec is mixed up with other kinds of grasses, the owner need not be compelled to tear it out9 [for he will do it in any case on account of the fact that the grasses spoil the fenugrec'.10 Now, does this not prove that grasses are disadvantageous to fenugrec?] — Said R. Jeremiah: There is no contradiction, for while the latter statement refers to the seeds,11 the former deals with the pods.12 It is only to the seeds that grasses are disadvantageous as they make them lean, whereas to the pods13 they are advantageous, for when placed between grasses they get softer. Or if you like I can say that while one statement refers to fenugrec sown for the use of man, the other refers to fenugrec sown for animals, for since it was sown for animals grasses are also required for it. How can we tell [for what it was sown]?13 — R. Papa said: If made in beds it is sown for man, but if not in beds it is for animals.
'That shoots be permitted to be cut off [by all] in all places, with the exception, however, of stumps of olive trees.' R. Tanhum and R. Barias explained in the name of a certain old man that in the case of an olive tree the size of the length of an egg has to be left over at the bottom; in the case of reeds and vines [it is only] from the knot and upwards14 [that it is permitted to cut off shoots]; in the case of all other trees [it is permitted only] from the thick parts of the tree but not from the central part of the tree, and only from a new bough that has not yet yielded fruit but not from an old bough which is yielding fruit; again, only from such spots [on the tree] as do not face the sun
Baba Kamma 81b
'That a spring emerging [even] for the first time may be used by the townspeople.' Rabbah son of R. Huna said that the owner3 is [still] entitled to be paid for its value. The law, however, is not in accordance with this view.
'That it be permitted to fish with an angle in the Sea of Tiberias provided that no sail is spread, as this would detain boats.' It is, however, permitted to fish by means of nets and traps. Our Rabbis taught: 'The tribes stipulated with one another at the very outset that nobody should spread a sail and thus detain boats. It is, however, permitted to fish by means of nets and traps.'4
Our Rabbis taught: The Sea of Tiberias was included in the portion of Naphtali. In addition, he received a rope's length of dry land on the southern side to keep nets on, in fulfilment of the verse, Possess thou the sea and the South.5
It was taught: R. Simeon b. Eleazar said: Anything found on the mountains detached from the soil was considered as belonging to all the tribes,6 but if still attached [to the ground] as belonging to the particular tribe [in whose territory it was found]. There was, however, no tribe in Israel which had not land7 both on the hills and in the vale, in the South and in the valley. as stated: Turn you and take your journey and go to the hill — country of the Amorites, and unto all the places nigh thereunto, in the plain, in the hills and in the vale, and in the South, and by the sea side8 etc., for you can similarly find the same regarding the Canaanites, perizites and Ammonites who were before them, as stated: 'and unto all nigh thereunto',8 proving that the same applied to those who were nigh thereunto.
'That it be permitted to ease one's self at the back of a fence even though in a field full of saffron.' R. Aha b. Jacob said: This permission was required only for the taking of a pebble from the fence.9 R. Hisda said: This may be done even on the Sabbath.10 Mar Zutra the Pious used to take a pebble from a fence and put it back there and tell his servant11 to go and make it good again.
'That it be permitted to use the paths in private fields until the time when the second rain is expected.' R. papa said that regarding our land [here in Babylon], even after the fall of [mere] dew this would be harmful.
'That it be permitted to turn aside to [private] sidewalks in order to avoid road pegs.' As Samuel and Rab Judah were once walking on the road, Samuel turned aside to the private sidewalk. Rab Judah thereupon said to him: Do the stipulations laid down by Joshua hold good even in Babylon? — He answered him: I say that it applies even outside Eretz Yisrael. As Rabbi and R. Hiyya were once walking on the road they turned aside to the private sidewalks, while R. Judah b. Kenosa went striding12 along the main road in front of them. Rabbi thereupon said to R. Hiyya. 'Who is that man who wants to show off13 in front of us?' R. Hiyya answered him: 'He might perhaps be R. Judah b. Kenosa who is my disciple and who does all his deeds out of pure piety.'14 When they drew near to him they saw him and R. Hiyya said to him: 'Had you not been Judah b. Kenosa, I would have sawed your joints with an iron saw.'15
'That one who lost himself in the vineyards should be permitted to cut his way through when going up and cut his way through when coming down.' Our Rabbis taught: He who sees his fellow wandering in the vineyards is permitted to cut his way through when going up and to cut his way through when coming down until he brings him into the town or on to the road; so also one who is lost in the vineyards may cut his way through when going up and cut his way through when coming down until he reaches the town or the road.16 What is the meaning of 'so also'? [Is the latter case not obvious?]17 — You might think that it is only in the case of a fellow-man wandering, in which case he18 knows where he is going to, that he may cut his way through, whereas in the case of being lost himself, when he does not know where he is going to, he should not be permitted to cut his way through but should have to walk round about the boundaries. We are therefore told that this is not so — Cannot this permission be derived from the Pentateuch? For it was taught: 'Whence can it be derived that it is obligatory to restore the body of a fellow-man?19 Because it is said: And thou shalt restore it to him20 [implying him himself, i.e., his person.'21 Why then was it necessary for Joshua to stipulate this?]22 — As far as the Pentateuch goes, he23 would have to remain standing between the boundaries [and walk round about]; it was therefore necessary for Joshua to come and ordain that he be permitted to cut his way through when going up and cut his way through when coming down.
'That a dead body, which anyone finding has to bury, should acquire the [right to be buried on the] spot [where found].' A contradiction could be pointed out [from the following:] If one finds a dead person lying on the road, he may remove him to the right side of the road or to the left side of the road. If on the one side of the road there is an uncultivated field and on the other a fallow field, he should remove him to the uncultivated field;24 so also where on the one side there is a fallow field but on the other a field with seeds he should remove him to the fallow field.25 But if both of them are uncultivated, or both of them fallow, or both of them sown he may remove him to any place he likes.26 [Does this not contradict your statement that a dead person acquires the right to be buried on the spot where he was found?] — Said R. Bibi: The dead person [in the latter case] was lying broadways across the boundary so that since permission had to be given to remove him from that spot27 he may be removed to any place he prefers.
I would here ask: Are these stipulations28 only ten [in number?] Are they not eleven? — [The permission] to use the paths in private fields is [implied in] a statement made by Solomon, as taught: If a man's produce has already been removed entirely from the field, and nevertheless he does not allow persons to enter his field, what would people say of him if not, 'What [real] benefit has that owner from his field, for in what way would people do him any harm?' It was regarding such a person that the verse says: While you can be good do not call yourself bad.29 But is it [anywhere] written:30 'While you can be good do not call yourself bad'? — Yes, it is written to a similar effect: Withhold not good from him to whom it is due, when it is in the power of thy hand to do it.31
But were there no more stipulations?32 Was there not the one mentioned by R. Judah? For it was taught: 'When it is the season of removing dung, everybody is entitled to remove his dung into the public ground and heap it up there for the whole period of thirty days so that it may be trodden upon by the feet of men and by the feet of animals; for upon this condition did Joshua transfer the land to Israel as an inheritance.33 Again, was there not also the one referred to by R. Ishmael the son of R. Johanan b. Beroka? For it was taught: R. Ishmael the son of R. Johanan b. Beroka said: It is a stipulation of the Court of Law that the owner of the bees34 be entitled to go down into his fellow's field and cut off his fellow's bough [upon which his bees have settled] in order to rescue the swarm of his bees while paying only the value of his fellow's bough; it is [similarly] a stipulation of the Court of Law that the owner of wine should pour out his wine [from the flask] so as to save in it the honey of his fellow35 and recover the value of his wine out of the honey of his fellow; it is [again] a stipulation of the Court of Law that [the owner of a bundle of wood] should remove the wood [from his ass] and load [on his ass] the flax of his fellow [from the back of the ass that fell dead]36 and recover the value of his wood out of the flax of his fellow; for it was upon this stipulation that Joshua transferred the land to Israel for an inheritance.'37 [Why then were these stipulations not included?] — Views of individual authorities were not stated [among the stipulations that have unanimous recognition].
- To Next Folio -