Babylonian Talmud: Tractate Baba Bathra

Folio 100a

R. Ashi said: Any¹  path [that runs] along the side [of a field] is crooked, [for] it is near to one and far from another.²  But let him say to them, 'Take yours and give me back mine'?³  — This [law of our Mishnah] is in accordance with [the view of] R. Eliezer; for it has been taught: R. Judah said in the name of R. Eliezer, [if] the public chose a path⁴  for themselves, that which they have chosen is theirs.⁵  [May, then], the public, according to R. Eliezer, act as robbers? — R. Giddal replied in the name of Rab: [R. Eliezer speaks of] a case where their path had been lost in that field.⁶  If so,⁷  why did Rabbah, son of R. Huna, state in the name of Rab [that] the halachah is not according to R. Eliezer?⁸  The reporter of the one statement is not the reporter of the other.⁹  What, then,¹⁰  is the reason [for the law of our Mishnah]?¹¹  — [The reason is derived] from that of Rab Judah; for Rab Judah said: A path of which the public has taken possession¹²  must not be destroyed.¹³  Whereby does the public acquire possession [of the path, according to] R. Eliezer?¹⁴  By walking; for it has been taught: If he walked in it¹⁵  through the length of it and through the breadth of it, he has acquired the place where he walked — these are the words of R. Eliezer. And the Sages say: Walking is of no avail unless he has taken possession.¹⁶  R. Eleazar said: What is the reason of R. Eliezer? — For it is written, Arise walk through the land in the length of it and in the breadth of it,' for I will give it unto thee.¹⁷  And the Rabbis?¹⁸  — There, He said to him thus¹⁹  only because of [His] love for Abraham, that his children may easily conquer [the land].²⁰

R. Jose, son of R. Hanina, said: The Sages agree with R. Eleazar in [the case of] a path of vineyards. Since it was made [only] for walking it is acquired by walking.

When they came before R. Isaac b. Ammi [with the case of one who sold to another a path in vineyards], he said unto them: Give him [a path so wide] that he may carry [through it] a load of twigs and [be able to] turn round.²¹  This, [however], has been said only [in the case] where [the path] is marked out by walls, but when it is not marked out by walls [the width of the path need be only] so much as [to allow him] to lift up one foot and put down the other.²²

A PRIVATE PATH … FOUR CUBITS. A Tanna taught: Others say [that the path must be of such a width] as an ass with its load may be able to pass. R. Huna said: The halachah is according to the Others. The Judges of the Exile²³  say: [The width is to be] two cubits²⁴  and a half; and R. Huna said [that] the halachah is according to the Judges of the Exile. Did not R. Huna say [that] the halachah is according to the Others? — Both measurements are identical.²⁵

A PUBLIC ROAD … SIXTEEN CUBITS. Our Rabbis taught: A private path²⁶  [is of the width of] four cubits; a path from one town to another²⁷  [is to have a width of] eight cubits;²⁸

1. Our Mishnah does not refer to a particular case where a crooked path had been substituted (as R. Mesharsheya suggested), nor is the provision in our Mishnah a case of preventive measures (as R. Zebid maintained), but any path, however good, cannot be placed along the side of a field as a substitute for one which runs through the midst of it.
2. Any one living on the farther side of the field. And since a number of people, to whom the substituted path will cause hardship, will object to the change, the abolition of the old path would constitute a robbery of the public, and is therefore prohibited.
3. Why, then, does the Mishnah state that both the old path and the new become public property?
4. Even if it runs through private property, and even if the landowner's permission has not been obtained.
5. Lit., 'chosen' ('Er. 94a); and the owner of the land cannot raise any objection to their use of the path.
6. While an individual could not in a similar case make the choice without the consent of the landowner or without the authority of the court, the public have a right to choose the path they like.
7. That, according to Rab, the case dealt with by R. Eliezer is that of recovering a lost path.
8. Surely, the public are entitled to reclaim what they have lost. How, then, are the two statements made in the name of Rab to be reconciled?
9. R. Giddal, who taught in the name of Rab that R. Eliezer deals with the case where a public path had been lost in the field, has not accepted the statement made in the name of Rab by Rabbah that the law is not in accordance with R. Eliezer. In the opinion of the former the law is in agreement with the view of R. Eliezer. Rabbah, on the other hand, who stated in the name of Rab that the law is not in agreement with R. Eliezer's view, has not accepted R. Giddal's statement. In the opinion of Rabbah, R. Eliezer speaks of all cases, even of that where no path had been lost in the field and, for this reason, the law is against him.
10. Since our Mishnah is not according to R. Eliezer.
11. Why should not the owner of the field be entitled to say to the public, 'Take yours and give me back mine'?
12. By levelling, and making it fit for walking. (Rashb.)
13. B.K. 28a; supra 12a; 26b; 60b. If the owner of the land had raised no objection at the time possession was taken by the public. How much less may the path be abolished when, as in our Mishnah, the public had taken possession with the owner's full consent
14. Since R. Eliezer does not speak of taking possession', but of 'choosing'.
15. Lit., 'the field which he bought.'
16. Of the land, by performing some act such as levelling, breaking. etc, cf. supra 52b ff.
17. Gen. XIII, 17.
18. Why, in the face of the Biblical verse, do they maintain that by walking alone possession cannot be acquired?
19. I.e., to acquire possession by walking.
20. That they may enter it as heirs and not as robbers.
21. Without touching the fences of the path.
22. Since there are no walls, one can carry a load conveniently, however narrow the path may be.
23. Samuel and Karna.
24. Gomed; V, however p. 279, n. 6. Others consider the gomed to be shorter than the cubit by a hand's length and to represent the distance between the elbow and the fingers.
25. Lit., 'this and this are the same size.'
26. For one person into his own field.
27. Reserved for the sole use of the inhabitants of the two towns.
28. To allow two wagons to pass each other.

a public road,¹  sixteen cubits; the road to the cities of refuge,²  thirty two cubits. R. Huna said: From what Scriptural text [may this be inferred]? — From the text, Thou shalt prepare thee the way;³  [instead of], 'a way' [it is written], 'the way'.⁴

THE KING'S HIGHWAY HAS NO LIMIT[s], because a king may break a wall to make a way for himself and no one may prevent him.

THE PATH OF A FUNERAL CORTEGE HAS NO LIMIT[s], in deference to the dead.⁵

THE HALTING PLACE HAD, SAID THE JUDGES OF SEPPHORIS, AN AREA OF FOUR KAB etc. Our Rabbis taught: If a person has sold his [family] grave, the path to [this] grave, his halting place⁶  or his house of mourning, the members of [his] family may come and bury him perforce,⁷  in order [to avert] a slight upon the family.⁸

Our Rabbis taught: No less than seven halts and sittings⁹  are to be arranged for the dead, corresponding to¹⁰  Vanity of vanities. saith Koheleth; vanity of vanities, all is vanity.¹¹  R. Aha the son of Raba said to R. Ashi: What was their procedure? He replied unto him: As it has been taught; R. Judah said, At first they provided in Judea no less than seven halts and sittings for the dead in the [following] manner: [The leader called out after the escort had sat down on the ground]. 'Stand, dear [friends], stand up'; [and after they had walked for some distance he again called out]. 'Sit down, dear [friends], sit down'.¹²  They¹³  said unto him: If so,¹⁴  such [procedure] should be permitted on the Sabbath¹⁵  also!

The sister of Rami b. Papa was married to R. Iwya. [When] she died he arranged [in] her [honour]¹⁶  a 'halting and sitting'. R. Joseph said: He erred on two [points]. He erred [in] that [the ceremony of halting and sitting] is to be held with near [relatives]¹⁷  only, and he held it even with distant [ones]; and he [further] erred [in] that they were instituted only for the first day [of the burial], and he arranged [them] for the second day. Abaye said: He also erred on the following [point]. These¹⁸  [were instituted] to take place in the grave-yard only, and he arranged [them] within the town. Raba said: He also erred on the following [point]. These¹⁸  may be arranged only where they are the local practice, but there, these were not the practice.

An objection was raised: [It has been stated that] they said unto him, 'If so, such [procedure] should be permitted on the Sabbath also'. Now, if it is said [that the ceremonial is to take place] in the graveyard and on the first day [only], [for] what [purpose] is the graveyard required on the Sabbath?¹⁹  — In [the case of] a town which is near a graveyard [and the dead] was brought [to burial] at twilight.²⁰

MISHNAH. IF ONE SELLS A PLOT [OF GROUND] TO ANOTHER AS A [FAMILY] GRAVE AND, LIKEWISE, IF ONE ACCEPTS [AN ORDER] FROM ANOTHER TO CONSTRUCT FOR HIM A [FAMILY] GRAVE, THE CENTRAL SPACE²¹  OF THE GROTTO MUST HAVE [AN AREA OF] FOUR CUBITS BY SIX.²²  AND EIGHT SEPULCHRAL CHAMBERS ARE TO OPEN OUT INTO IT; THREE FROM [THE WALL ON] ONE SIDE.²³  THREE FROM [THE WALL ON] THE OTHER,²³  AND TWO [FROM THE WALL] IN FRONT.²⁴  THE CHAMBERS MUST BE FOUR CUBITS IN LENGTH, SEVEN [HANDBREADTHS] IN HEIGHT,

1. Used by people of more than two towns.
2. V. Num. XXXV, 6ff; Deut. XIX, 2ff.
3. Deut. XIX, 3.
4. [H] ha-derek. The definite article implies a 'special' way, double the usual which is of sixteen cubits.
5. In order that as many as possible may join his funeral escort to pay him their last honours.
6. V. supra p. 416, n. 8, and n. 4 infra.
7. They may force the buyer to take back the purchase price and cancel the sale.
8. Keth. 84a. Bek. 52b.
9. The funeral escort, on returning from a burial, halted on the way at a certain station, where seven times they stood up and sat down on the ground to offer comfort and consolation to the mourners or to weep and lament for the departed.
10. The seven times 'vanity' mentioned in the following verse: Three times 'vanity' in the singular, and twice in the plural which equal four in the singular.
11. Eccl. I, 2.
12. This is the conclusion of the answer to R. Aha's enquiry.
13. The Sages.
14. That the entire ceremonial consisted only of the leader's directions and of sitting down and standing up.
15. I.e., the Sabbath eve, if the burial took place near dusk. In such a ceremonial no desecration of the Sabbath could be involved.
16. Lit., 'for her'.
17. Who are not so near as to be included among the mourners.
18. I.e., 'halting and sitting'.
19. Surely burial on the Sabbath is forbidden
20. Of the Sabbath eve. In such a case the ceremonial would be performed on the Sabbath (V. p. 420, n. 10). Though the night forms, for general purposes, the beginning of the following day, in respect of the mourning on the first day of the death an exception is made, and the night is held to follow the previous day. Sabbath eve can accordingly be regarded for the purpose as Friday. viz., the first day of the burial.
21. Family graves were constructed in the form of a central grotto from which sepulchral chambers opened into the surrounding walls.
22. The height of the grotto is to be, according to the Tosefta, four cubits.
23. Of the two longer walls.
24. The shorter wall that faces the entrance.