BABA BATRA ("The Last Gate"):

By: Marcus Jastrow, Michael Friedländer

The third of the three Talmudic tractates of the order Neziḳin, dealing with man's responsibilities and rights as the owner of property, of a house or field. This "massekta" (treatise) is not, like Baba Ḳamma and Baba Meẓi'a, the exposition of a certain passage in the Pentateuch. 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 (ch. iii.).

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 Num. 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.

The Tosefta has eleven chapters, which correspond to the ten chapters of the Mishnah as follows: chap. i. corresponds to chap. ii. of Mishnah; ii. to iii.; iii. to iv.; iv. to v. 1-5; v. to v. 6-11; vi. to vi.-vii.; vii. to vii.; viii.-x. to ix.; xi. to x.

The two Gemaras discuss and explain the laws of the Mishnah and add many fresh problems, especially the Babylonian Gemara. The Palestinian Gemara is very short, and contains little new matter. The following passages may find a place here:

Bab. 3b: One synagogue must not be pulled down before another is built. Herod, by virtue of his authority as king, ignored the rule, and pulled down the Temple before the new one was built. The story of Herod and Mariamne and a narrative of other incidents of Herod's reign are attached.

7b: Every member of the community is compelled to contribute his share toward the building of gates, walls, etc., of his place.

Examples of Gemara.

10a: Turnus Rufus (Tyrannus Rufus) asked R. Akiba, "If your God is a friend of the poor, why does He not give them sufficient to live upon comfortably?" To which R. Akiba rejoined, "That we may have opportunity for good actions." There are ten powerful things; and these are overcome by stronger things: a mountain by iron; iron by fire; fire by water; water is borne by the clouds; these are dispersed by the wind; the wind is borne by the human body; the latter is broken down by fear; fear is expelled by wine; wine is overcome by sleep; death is harder than all these, and yet "charity" ("ẓedaḳah") saves from death.

14b: The order of the Prophets is: Joshua, Judges, Samuel, Kings, Jeremiah, Ezekiel, Isaiah, and the twelve minor Prophets. Kings is followed by Jeremiah because Kings ends with the Exile, and Jeremiah deals with the same subject; Ezekiel precedes Isaiah, because the former ends with the rebuilding of the Temple, and Isaiah's prophecies throughout contain comforting hopes and promises. The order of the Hagiographa is Ruth, Psalms, Job, Proverbs, Ecclesiastes, Song of Songs, Lamentations, Daniel, Esther, Ezra (including Nehemiah), and Chronicles. Moses wrote his book, including the section about Balaam, and Job. Joshua wrote his book and the last eight verses of the Pentateuch.

21a: At first every father had to teach his children. A large school was then opened in Jerusalem; and after that schools were established in every community. At first they were attended only by youths of sixteen or seventeen years; but Joshua b. Gamla introduced the custom that children of six or seven years should attend the schools: interesting regulations are added concerning the location of public schools, the number of pupils for each class, and the like.

58b: The elders of the Jews say, "A judge who has to be summoned to the court, and ordered by the court to pay his debt, is unfit to act as judge."

73b et seq.: The wondrous tales of Rabbah bar Ḥanah.

74b: Legends about Leviathan, and about the wonderful changes in the days of Messiah.

121a: Connection of the celebration of the fifteenth of Ab (end of Mishnah Ta'anit), with the reconciliation between the Benjamites and the rest of the Israelites.

The Gemaras also contain the following interesting homiletic interpretation of Biblical passages:

Zeph. ii. 1: "Hitḳosheshu waḳoshu" ("Gather yourselves together, yea, gather together"). "Ḳashshet 'aẓmeka, ve-aḥar kak ḳashsheṭ aḥerim" ("Improve thyself first, and then improve others") (60b).

Num. xxi. 27: "'Al ken yomeru hammoshelim bō'u Ḥeshbon" ("Wherefore they that speak in proverbs say, 'Come ye to Heshbon'"), "Thus shall they that control themselves say, 'Come, let us reckon and compare the material loss caused by a good act with the reward, and the gain obtained through sinning, with the punishment; then thou wilt be built up and firmly established'" (78b, a play on "mashall," which also means "to rule," and on "Ḥeshbon" = "reckoning").

Prov. xv. 15: "All the days of the poor are troublesome"—this applies to the students of Gemara —"but he who is of a cheerful heart hath a continual feast"—this applies to the students of the Mishnah (145b).

The commentary of Rashi on the Babylonian Talmud Baba Batra ends at the beginning of chap. iii.; its place is taken by that of his grandson, Rabbi Samuel b. Meïr ("Rashbam"), from ch. iii. to the end of the massekta.

J. Sr. M. F.