Babylonian Talmud: Tractate Baba Mezi'a

Baba Mezi'a 108a

if not, they cannot walk there [in any case]'.¹

Rabbah son of R. Nahman was travelling in a boat, when he saw a forest on the river bank. Said he: 'To whom does this belong?' — 'To Rabbah son of R. Huna', he was informed. He thereupon quoted, 'Yea, the hand of the princes and rulers hath been chief in this trespass.²  Cut it down, cut it down', he ordered. Then Rabbah son of R. Huna came and found it cut down. 'Whoever cut it down', he exclaimed, 'may his branches be cut down!'³  It was related that during the whole lifetime of Rabbah son of R. Huna none of Rabbah son of R. Nahman's children remained alive.

Rab Judah said: All must contribute to the repair of the breaches in the wall,⁴  even orphans; but not the Rabbis. Why? — The Rabbis need no protection.⁵  But for the digging of wells [for drinking purposes] even the Rabbis are liable. But that is only if they [the townspeople] do not go out in bands;⁶  if however, they do, [the Rabbis] are not [liable], because it is not In keeping with their dignity.⁷

Rab Judah said: When the river needs dredging,⁸  those dwelling on the lower reaches must aid the upper inhabitants, but not vice versa.⁹  But it is the reverse in respect to rain water.¹⁰

It has been taught likewise: If five gardens draw their water from the same well, and the well is damaged, all must assist the upper field; hence the lowest must aid all the rest, yet must repair by himself.¹¹  Likewise, if five courts run off their [surplus] water into one dyke, and the dyke is damaged, all must assist the lowest in the repairs;¹²  hence the highest must assist all in repairing, yet must repair by himself [receiving no aid from the others.]

Samuel said: He who takes possession of the wharfage of a river is an impudent person, but cannot be [legally] removed.¹³  But nowadays that the Persian authorities write [in the warrant of ownership], 'Possess it [sc. the field on the river bank] as far as the depth of water reaching up to the horse's neck', he is removed.¹⁴

Rab Judah said in Rab's name: If one takes possession¹⁵  [of an estate lying] between [the fields belonging to] brothers or partners, he is an impudent man, yet cannot be removed. R. Nahman said: He can even be removed too; but if it is only on account of the right of pre-emption, he cannot be evicted.¹⁶  The Nehardeans said: He is removed even on the score of the right of pre-emption, for it is written, And thou shalt do that which is right and good in the sight of the Lord.¹⁷

What if one came to take counsel of him [sc. the neighbour who enjoys the right of pre-emption] and asked, 'Shall I go and buy it?' and he replied, 'Go and buy it': is formal acquisition from him necessary,¹⁸  or not? — Rabina¹⁹  ruled: No formal acquisition is necessary; the Nehardeans maintained: It is. And the law is that a formal acquisition is needed.²⁰  Now that you say that a formal acquisition is necessary, — if he did not acquire it of him [and bought the field], it advances or falls in his [the abutting neighbour's] ownership.²¹  Now, if he bought it for a hundred [zuz], whereas it is worth two hundred, we see: if he [the original vendor] would have sold it to any one at a reduced figure, he [the abutting neighbour] pays him [the vendee] a hundred [zuz] and takes it. But if not [and it was a special favour to the vendee], he must pay him two hundred and only then take it. But if he bought it for two hundred, its value being only one hundred, — it was [at first] thought that he [the abutting neighbour] can say to him, 'I sent you for my benefit, not for my hurt.'²²  But Mar Kashisha, the son of R. Hisda,²³  said to R. Ashi: Thus did the Nehardeans say in R. Nahman's name: There is no law of fraudulent purchase in respect to real estate.²⁴

If one sold a griwa²⁵  of land in the middle of his estate, we see: if it is of the choicest or of the most inferior quality, the sale is valid;

1. Since the noble could not be compelled to clear his forest, Rabbah's clearing would serve no purpose.
2. Ezra IX, 2.
3. I.e., may his children die!
4. As a measure of defence.
5. The merit of their learning protects them.
6. To dig it personally, but merely furnish the money for it.
7. On the whole passage v. B.B. (Sonc. ed.) p. 33.
8. Of mud and refuse which impede the free flow of the water.
9. If there are obstacles on the upper parts of the river, the water flow is adversely affected for the lower too. But on the other hand, there is no profit for the upper inhabitants to clear the lower portions, for the greater the ease with which the water runs downwards, the less water is left for them.
10. Where the rainfall has to be drained away because it injures the roads etc., those on the upper reaches must aid the lower, because if the lower water is not carried off the upper cannot be either. But those living below have no profit in the drainage of the town situated by the upper reaches of the river.
11. As before, it is in the interest of each that the water from above shall flow freely to his own field, but not that it shall continue after it has passed his estate. Therefore the lowest of all must assist in the repairing if the course is blocked above, but none need help him if it is blocked at his own estate.
12. If it was damaged at his court.
13. As stated above, p. 425, under Persian law, he who paid the land tax on a plot of land was entitled to it. A large clear space on the river bank was left for the purpose of unloading. It would appear that originally no one had a particular claim to it, and the revenue suffered accordingly. Hence, if one paid the land tax and seized it, he could not be legally removed; nevertheless, since this would cause considerable public inconvenience, he was stigmatised as an impudent man, lacking in civic responsibility.
14. Though the owners fence off their fields at some distance from the water's edge, the land actually belongs to them, and therefore none can legally seize it.
15. By paying the land tax thereon.
16. I.e., if the two fields on either side do not belong to brothers or partners, yet the owners allege that they had a prior right to pay the tax and take the land, and had intended doing so, in accordance with the right of pre-emption (v. p. 396, n. 6), their plea is unavailing.
17. Deut. VI, 18. This is regarded as an exhortation to the purchaser: 'Why buy a field just here, where it is more useful to its neighbour than another field not adjacent to his, when you can as easily buy a similar field elsewhere, seeing that it makes no difference to you?'
18. [The performance of a kinyan confirming the surrender of the abutting neighbour's right of pre-emption.]
19. Alfasi reads: R. Nahman.
20. Otherwise the neighbouring estate owner can say, 'I merely stood aside whilst you established its price, as I knew that I would be charged more, being particularly anxious to obtain it.'
21. I.e., the purchase is legally invalid, the abutting neighbour retaining his option on it. Therefore if it appreciates after the purchase, he can insist on taking it over from the vendee at its value at the time of purchase, and the profit of the advance is his. Contrariwise, if it loses in value, he must pay the vendee its full original value.
22. For the vendee has in fact involuntarily become the neighbour's agent for purchase. Hence the latter can repudiate his act and insist on receiving it at its market value.
23. V. p. 388, n. 4.
24. Hence the neighbour must render the price paid by the vendee.
25. V. Glos.

otherwise it is mere evasion.¹

A gift is not subject to the law of pre-emption. Said Amemar: But if he [the donor] promised²  security of tenure,³  it is subject thereto.⁴  When one sells all his property to one person, the law of pre-emption does not apply.⁵  [Likewise, if it is sold] to its original owner, it is not subject to the law of pre-emption. If one purchases from or sells to a heathen, there is no law of pre-emption. 'If one purchases from a heathen' — because he [the purchaser] can say to him [the abutting neighbour], 'I have driven away a lion from your boundaries.' 'If he sells to a heathen' — because a heathen is certainly not subject to [the exhortation], 'And thou shalt do that which is right and good in the sight of the Lord.' Nevertheless, he [the vendor] is placed under a ban, until he accepts responsibility for any injury that might ensue through him [the heathen]. A mortgage is not subject to the law of pre-emption. For R. Ashi said: The elders of Matha Mehasia told me, What is the meaning of mashkanta [a pledge, mortgage]? That it abides with him [the mortgagee].⁶  What is its practical bearing? In respect to pre-emption. When one sells [an estate] that is far [from the vendor's domicile] in order to buy one that is near, or an inferior property to repurchase a better, the law of pre-emption does not apply.⁷  [When an estate is sold] for polltax, alimony [of a widow and her daughters] and funeral expenses, the law of pre-emption does not apply, for the Nehardeans said: For poll-tax, alimony, and funeral expenses an estate is sold without public announcement.⁸  [A sale] to a woman, orphans, or a partner is not subject to the law of pre-emption.⁹

Of urban neighbours and rural neighbours, the former have priority;¹⁰  of a neighbour [but not of the field to be sold] and a scholar, the latter takes precedence; of a relative and a scholar, the latter has priority. The scholars propounded: What of a neighbour and a relative? — Come and hear: Better is a neighbour that is near that a brother that is far off.¹¹

If one offers well-formed coins, and the other full — weight coins,¹²  the law of pre-emption does not apply. If these [the coins of the abutting neighbour] are bound up, and those [of the purchaser] unsealed, there is no pre-emption.¹³  If he [the neighbour] says, 'I will go, take trouble, and bring money;' we do not wait for him. But if he says, 'I will go and bring money;' we consider: if he is a man of substance, who can go and bring the money [without delay], we wait for him; if not, we do not wait for him.

If the land belongs to one and the buildings [upon it] to another, the former can restrain the latter,¹⁴  but the latter cannot restrain the former.¹⁵  If the land belongs to one and the palm-trees [upon it] to another, the former can restrain the latter, but the latter cannot restrain the former. [If a stranger wishes to purchase] the land for building houses, and [the abutting neighbour wants] the land for sowing, habitation is more important; and there is no law of pre-emption. If a rocky ridge or a plantation of young palm trees lay between [the fields], we consider: If he [the abutting neighbour] can enter therein even with a single furrow,¹⁶  it is subject to the law of pre-emption, but not otherwise.¹⁷  If one of four neighbours [on the four sides of a field] forestalled the others, the sale is valid; but if they all come together, it [the field] is divided diagonally.¹⁸

1. If A buys a small piece of land in the middle of B's estate, he immediately becomes a neighbour to the surrounding estate, just as C, the original neighbour on the outer side. Now, if the land bought by A is distinctly inferior or superior to the rest, it is natural that it should be sold separately, and the sale is genuine. But if it is just the same, it is obviously a mere fiction to make A the neighbour of B, and therefore C retains his rights of pre-emption.
2. Lit., 'wrote'.
3. I.e., in case it is seized for the donor's debt, another will be supplied.
4. Because it must have been a disguised sale, no person promising security for a gift.
5. Because the purchaser might refuse to buy the rest if he must give up any portion thereof.
6. [ [H] from [H] 'to rest', 'abide'. The mortgagee is considered the nearest abutting neighbour; v. B.M. (Sonc. ed.) p. 396, n. 6.]
7. Since the vendor may suffer through the delay, and no privilege is given to one which entails a disadvantage to another.
8. In other cases of forced sale by order of the court, it was publicly announced so as to attract bidders. But these were regarded as matters of urgency, and therefore the announcement was dispensed with. For the same reason, one cannot wait for the neighbouring estate-owner to avail himself of his privilege.
9. It was not held seemly that a woman should go about in search of land to buy; therefore the first purchase she makes is valid, even though it infringes upon the rights of pre-emption. The same privilege is accorded to orphans, on account of their generally defenceless state. With respect to partners, there are different interpretations. Rashi: If A and B are partners in a field, and C is their neighbour, A can sell his portion to B, and C cannot plead, 'Since I am a neighbour, I am entitled to buy half that portion, as in the case of two neighbours.' Tosaf. and R. Hai (quoted in Asheri a.l.): If A and B are partners in general, in land, or in business, A can sell a field to B (in which they are not partners) notwithstanding that C is a neighbour. In actual law, both interpretations are accepted; v. H.M. 175, 12 and 49.
10. If A is selling a field, and B is his neighbour in town, having a house next to his, whilst C is a neighbour of a field belonging to A, but not of that which is for sale, so that neither is a neighbour of the field to be sold, priority must be given to B, the urban neighbour. Thus, this does not refer to pre-emption at all. So Rashi, who bases his interpretation on the following arguments: (i) Whereas the whole of the preceding passage uses the phrase 'the law of neighbourly pre-emption' ([H]), this passage speaks of priority, in quite a different phrase ([H]); (ii) Had the reference been to pre-emption, the previous passage should have included it, reading, (A sale) to a woman, orphans, a partner, and urban neighbour, and a scholar (as this passage continues) is not subject to pre-emption; (iii) Surely a scholar cannot infringe upon the pre-emption rights of an ignoramus! Tosaf. holds that the passage does refer to pre-emption, but treats of two neighbours. The weight of authority supports Rashi's view; v. H.M. 175, 50.
11. Prov. XXVII, 10.
12. V. p. 403, n. 4. If the neighbour offers the former and the purchaser the latter, or vice versa, the vendor can insist upon a particular preference.
13. If a neighbour and a stranger send money for the field, the former's coins being bound up and sealed in a package, whilst the latter's are open to view, and the vendor maintains that he is afraid to open the package, lest the sender claim that it contained more, he can sell to the stranger.
14. From selling them to a stranger, if he wishes to buy himself.
15. The landowner is regarded as permanent on the land, hence he can restrain the house-owner; not so the latter, who is held to have no permanent stake in the land.
16. I.e., the separation is not continuous.
17. Because the main reason of the right of pre-emption is that it is cheaper to cultivate two adjoining fields than two separate ones, as a long continuous furrow can be ploughed and sown in a single operation.
18. v. figure.