Bava Batra

Bava Batra

Bava Batra is the third of the three tractates in the Talmud in the order Nezikin; it deals with a person's responsibilities and rights as the owner of property. It is part of Judaism's oral law.

This "massekta" (treatise) is not, like Bava Kamma and Bava Metzia, the exposition of a certain passage in the Torah. It is divided into ten chapters, the contents of which may be described as follows: (1) Regulations relating to property held by more than one owner (ch. i.); (2) responsibilities of an owner of property with regard to that of his neighbor (ch. ii.); (3) established rights of ownership and rights connected with property (ch. iii.); (4) laws referring to the acquisition of property by purchase (ch. iv.-vii.); (5) laws of inheritance (ch. viii.-ix.); (6) laws concerning documents (ch. x.).

Joint Ownership

1. Joint owners of property may dissolve partnership and divide the property, if the parties consent, except in the case of a volume of the Scriptures, which may not be divided under any circumstances. Things which lose their value on division can only be divided if all the owners consent. Except in these cases, either party has a right to insist on a division of the property. In the case where a courtyard ("ḥaẓer") is owned by several partners, each of them has to contribute to the usual requirements of a court; if they divide it, a partition wall or fence must be erected in accordance with certain rules. The previous partners are now neighbors; and their relations are described in chap. ii.

2. The fundamental rule about neighboring property is, that the owner of the adjoining property must avoid everything that might prove a nuisance to the neighbor, or a source of injury to the neighbor's property. "The noise of a smith's hammer, of a mill, or of children in school, is not to be considered a nuisance" (ii. 3). Disputes as regards injury or nuisance are generally settled by the fact of prior or established rights (Ḥazaḳah).

3. "Ḥazaḳah" (established right, possession de facto) is proved by the undisturbed exercise of such a right during a certain period (three years), in spite of the presence of the rival claimant in the same "land." In this respect Palestine was divided into three "lands" or districts (iii. 2): Judah, Galilee, and Peræa.

Acquisition of Property

4. In the transfer of a house, a court, a winepress, a bath, a township, or a field, much depends on the meaning of these terms, which are fully defined in chap. iv. In the Mishnah similar definitions are given of a boat, a cart, a yoke of oxen, and the like (v. 1-5). In selling the produce of the field care must be taken that there be no deviation from the conditions of the sale as regards quality and quantity, lest the sale be declared invalid ("meḳaḥ ṭa'ut," v. 6-vi. 3). Various problems resulting from the sale of property, of a house, or of a piece of land are discussed in the Mishnah (vi. 4-vii.); among them the sale of land for a burialground for a family, or the undertaking by a workman to prepare it (vi. 8). The burial-place is described as follows: "A cave hewn out in a rock 4 cubits broad and 6 cubits long (or, according to R. Simeon, 6 by 8 cubits); along the length of the cave on each side there are three graves of 4 cubits long, 1 cubit broad, and 7 handbreadths ('ṭefaḥim') high; and 2 such graves in the back of the cave. In front of the cave was the court ('ḥaẓer') 6 by 6 cubits, so as to afford sufficient room for the bier and the persons attending the burial."

Laws of Inheritance

5. The laws of inheritance are based on Numbers xxvii. 8-11, as interpreted by tradition. Among these is the rule that the husband inherits the property of his deceased wife, her claim in case of the husband's death being settled in the marriage contract (Ketubah). Another rule gives to the first-born son a double share of his deceased father's property. Thus the daughters of Zelophehad are said to have claimed, as their father's property, three shares of the Holy Land (which is assumed to have been divided among the 600,000 men brought out of Egypt); namely, the share of Zelophehad and, as a first-born son of Hefer, a double share of the property of his deceased father (viii. 3). These laws do not interfere with the right of a man to donate his property according to his pleasure (viii. 5).

Complicated cases are dealt with in chap. ix.; such as the simultaneous claims of the heirs, the wife, and the creditors of the deceased; or the conflicting claims of the heirs of the husband and of those of the wife, where the husband and wife are found dead at the same time; the heirs of the former contending that she died first, and that by her death her property became the property of the husband; while the other party contends that he died first, and that the wife's heirs inherit her property.

Regulations About Documents

6. As legal documents are of great importance in the problems dealt with in the three Babas, a chapter is added, containing regulations concerning the writing of such documents. Of these one peculiarity may be mentioned; namely, the difference between "geṭ pashuṭ," a simple, unfolded document, and "geṭ meḳushshar," a folded document. The latter was prepared in the following way: When a line or two had been written the parchment was folded and one witness signed on the back of the document; this operation was repeated as many times as the parties concerned liked. This method, requiring a longer time for the execution of the document, is said to have been originally introduced for the writing of a letter of divorce in the case of hasty and passionate husbands (especially priests who were prevented by law from remarrying their divorced wives), in order to give them time to calm down (B. B. 160b). The massekta of the three Babas closes with a general remark on the educational value of the study of civil law.


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