Bava Batra 13a (יג.) — the Talmud in English

The Gemara proceeds to discuss another case:

If their father left them a field that

on one side

has along its northern boundary

a nagra

[a reservoir of irrigation water],

and on one side

has along its eastern boundary

a nahara,

a river.

An illustration should appear here 3

In this case, it is impossible to divide the field into two parts. If they were to divide the field across its width, the river would be located only in one brother’s portion, while the other brother’s portion would not border the river at all. For this reason, they also cannot divide the field lengthwise. For although in that division their portions bordering the river would be equal, the entire nagra would fall into the portion of only one of them, so that his portion would be larger than his fellow’s. Therefore:

They divide it

they must divide the field

be-karnazul,

into eight portions in a diagonal pattern , so that they can divide it equally, as will be explained—an illustration should appear here 4

For when considering the river, the closer the field is to the river, the greater its value. Thus, the portions of highest rank are those adjoining the river [portions 1 and 2 in illustration 4]. Each of them takes one of these portions, so that with regard to this part of the field their division is equal, since each received a portion adjoining the river.

Likewise, when they divide portions 3 and 8 [which do not adjoin the river but are closer to it than the other portions], their division is equal, since these two portions are on the same level: both are equally close to the river. Similarly, regarding the division of portions 4 and 7, these two portions are equal in their distance from the river, and therefore, when each takes one portion, this is an equal division. The same applies to portions 5 and

6.

“Nor the reception room, etc.”:

We learned above [11a] in the Mishna that a partner cannot compel his partner to dissolve the partnership and divide the property unless, even after the division, the property will still retain its designation. For example: they do not divide a reception room unless, even after the division, each of them will retain a portion that is called a “reception room.” But if, after the division, the portion held by each of them will not be called a “reception room” [because of its small size], one of them cannot compel his partner to divide the reception room.

The Gemara raises a dilemma concerning a case in which the properties [listed in the Mishna] cannot be divided because

they are insufficient for both this one and that one,

the courtyard is too small for each of them to retain a portion whose name would remain as it was before the division:

What is

the halakha?

Can one partner say to the other: “I no longer wish to remain your partner. Since this property cannot be divided into two, you should purchase my share from me, or I will purchase your share from you”? Or perhaps he has no power to compel his partner to purchase or sell, and he must remain his partner against his will.

Rabbi Yehuda said:

In this case,

there is a law

that applies to it,

of ‘gud o agud.’

That is, one of them can say to his fellow: “Either ‘gud’ you—purchase my share in the property, and you will become the owner of all of it—or I will ‘agud,’ meaning that I will purchase your share in the property” . The nature of the law of ‘gud o agud’: With regard to this law of “gud o agud,” one must investigate whether it is a novel law, namely, that when division is impossible, one of the partners can demand that the other sell him his share or purchase his share from him. Or perhaps there is no novel law here that allows one partner to compel the other to purchase or sell; rather, the foundation of this law is part of the laws of division. Just as in an ordinary division they divide the property into two and each partner receives one portion, so too, where it is impossible to divide in this manner, they carry out the division in a different manner, in which one takes the field and the other takes its monetary value. According to this possibility, the fact that one partner can compel the other to purchase or sell is based on the law that a partner can compel his fellow to divide the property with him. Here too, he can compel him to divide with him in this manner, in which one takes the field and the other takes its monetary value, since this too is a form of division. The later authorities inferred from the language of Maimonides [chapter 1 of the Laws of Neighbors, halakha 2] and from the language of the Shulhan Arukh [Hoshen Mishpat, section 171, subsection 6], who wrote that one says to his fellow, “Sell me your share for such-and-such an amount,” or, “Purchase from me at this price,” that this law is fundamentally a matter of sale and transfer of ownership rather than division. For this language demonstrates that if it were part of the laws of division, there would be no “sale” or “transfer of ownership” here, but rather division of the field in exchange for its monetary value, with the acquisition taking effect automatically. It is known that this investigation is connected to the dispute among the Rishonim as to whether the law of “gud o agud” is Torah law or a rabbinic enactment (see above). According to the Kiryat Sefer, who holds that it is Torah law, its foundation must necessarily be the law of division, for we do not find in Torah law a novel law that one can compel his fellow to purchase or sell. Its foundation must necessarily be among the laws and principles of division established in the Torah. However, according to the other Rishonim, who hold that it is rabbinic law, it remains possible to question the nature of the enactment: did the Sages enact a rabbinic law of “division,” or did they enact a novel law granting a partner the right to demand that his fellow purchase or sell? In the novellae of Rabbi Hayyim of Telz, he wrote that the practical difference in this investigation—whether “gud o agud” is fundamentally a matter of sale and transfer of ownership or a matter of division—is whether the consent of the other partner is required for the acquisition. If its foundation is the law of division, his consent is unnecessary, since he is not effecting a legal acquisition; rather, when the division is carried out, the acquisition takes effect automatically. But if it is a matter of sale and transfer of ownership, his consent is necessary in order for the acquisition to take effect. The Yad Ramah below, on page 48 [letter 185], wrote that the second partner must say, “I wish to do so,” demonstrating from his words that this is a law of sale and transfer of ownership and not a law of division, since carrying out a division does not require his consent, as explained. The foundation of the dispute between Rabbi Yehuda and Rav Nahman: In the Yad Ramah, letter 164, he wrote that the foundation of the dispute over whether the law of “gud o agud” applies is that they disagree as to which arrangement more closely resembles division. Since one of them requests division, but it is impossible to divide the field, we must bring about a situation that resembles division as closely as possible. Rabbi Yehuda holds that “gud o agud” resembles division, since each one takes a portion from which he benefits [land or money], and they separate from one another. But Rav Nahman holds that remaining partners resembles division more closely, because in this manner neither one completely withdraws from the field, and they divide its uses [or the rental proceeds]. “Gud o agud” where one wishes to purchase the field for more than its value: Tosafot [sv. it] cited the view of Rabbi Yitzhak, who holds that a partner can say to his fellow: “Purchase my share in the courtyard at a high price [higher than its value], and if you do not wish to do so, I will purchase your share from you at the same price that I set.” His partner cannot say to him: “I wish to purchase your share, but only for a small sum corresponding to its actual value.” Rather, if he does not wish to purchase it at the high price, he must sell his share. However, the Riva disagrees; see Tosafot for his reason. The Rishonim [the Rosh, section 50, and the responsa attributed to Nahmanides, section 43] inferred from Rashi’s words that his view is like that of Rabbi Yitzhak in Tosafot. Their inference is based on Rashi’s wording: “Set a price for me and purchase my share, or I will set a price and give you your share.” The Beit Yosef explained Rashi’s intent as follows: He says to him, “Set a price for me”—that is, establish the price at which you wish to take my share. If I wish, I will purchase your share from you for that same amount; if not, give me the amount you set, and I will give you my share. Alternatively, I will set a price for your share, meaning that I will establish the price at which I wish to purchase your share. Then, if you wish, you will give me the amount I set and take my share; if not, I will purchase your share from you for that same amount. It follows that Rashi explicitly holds that each of them has the right to set the purchase price as he wishes, and that it need not be the true value of the property, in accordance with Rabbi Yitzhak’s view in Tosafot. See also the Beit Yosef there, which explained Maimonides’ view on this matter and how Maimonides interpreted the expression “gud o agud.” See above in the preceding note what we cited from the Derisha in explaining the expression “gud o agud” according to Rashi.

Rav Nahman said: There is no law of gud o agud!

This law of “gud o agud” does not exist!

Rava said to Rav Nahman: According to you, who say

according to your view, that you maintain

there is no law of gud o agud

and one cannot compel the other to purchase or sell, what will be the law in the following case:

Two brothers, one of whom is

a firstborn

and the other

an ordinary son ,

whose father left them

as an inheritance

a slave

or

an impure animal—what do they do

how can they divide the inheritance between them? For it is impossible to divide the slave or the animal into several parts. Granted, according to Rabbi Yehuda, who maintains the law of “gud o agud,” one brother can say to the other: “Purchase my share in the slave or the animal from me, or I will purchase your share.” But according to Rav Nahman, who holds that one cannot compel the other to carry out “gud o agud,” how can they divide the inheritance between them? [It is discussed in the note why the Gemara specifically stated “a firstborn and an ordinary son.” Seemingly, the same difficulty applies to two ordinary brothers whose father left them a slave or an impure animal: How can they divide it? ] The view of Tosafot: Tosafot [sv. “firstborn”] likewise asked why the Gemara stated “a firstborn and an ordinary son” rather than a case of two ordinary sons. They answered in the name of Rabbeinu Tam that, in the case of two ordinary sons, it would be obvious to the Gemara that they could divide the use by days: one day Reuven would use it and one day Shimon would use it [as Rav Nahman answers below]. But in the case of a firstborn and an ordinary son, they cannot divide it by days. If one gives the firstborn two days and the ordinary son one day, the firstborn will receive more than twice as much, because the rental value of an animal for two days is worth more than twice its value for one day. For example, if there is a distant town a day’s journey away where merchandise is inexpensive, then in one day it is impossible to travel there and trade, whereas in two days one can travel there and trade. Thus the firstborn will profit more than twice as much as the ordinary son. Since they cannot divide it by days, the Gemara asks: How can they divide it? See below an explanation of the Gemara’s answer according to this interpretation. The Ritva’s explanation of Rashi’s view: See the Ritva, who wrote that it is possible to explain Rashi’s view as also agreeing with Tosafot. However, Rashi held that even so, they can still divide it. For although Tosafot wrote that an animal for one day is worth ten zuz, while for two days it is worth thirty zuz, they can nevertheless divide it equally by giving the ordinary son somewhat more than one day, so that the period during which the animal is in his possession will be worth fifteen zuz, while the firstborn will have the animal for two days. Their portions will then be equal. This is what Rashi meant when he wrote that it is troublesome for them to divide it in such a manner that they must calculate the periods so that the firstborn receives twice as much and no more. The view of Rabbeinu Yonah and the other Rishonim: Rabbeinu Yonah, the Ramah, and the Rashba explained differently why the Gemara stated “a firstborn and an ordinary son.” In the case of two ordinary sons, the brothers can rent out the slave or animal and divide the rental proceeds. But a firstborn and an ordinary son cannot divide it in this manner, because the firstborn does not receive twice as much of the rental proceeds. The firstborn receives twice as much only from money and property that his father left at the time of his death. But regarding property that is “due” to come after his father’s death [such as an increase in value produced by the property after the death, or rental proceeds, which are money newly generated after the father’s death], the firstborn does not receive twice as much, as explained below, on page 124. See the following note for a difficulty with the Gemara’s answer according to this explanation.

He said to him

Rav Nahman to Rava.

I say

that the division will be carried out as follows:

The slave works

the slave [or animal

for this one

the ordinary son

for one day, and for that one—the firstborn—for two days ,

in accordance with the law of a firstborn, who receives twice as much. Thus, although they did not divide the slave or animal itself, they nevertheless divided the use of the slave or animal.

Explanation of the Gemara’s answer according to Rabbeinu Yonah: Above [in the preceding note], the view of the Rishonim was cited that this is why the Gemara stated “a firstborn and an ordinary son”: in this case they cannot rent out the animal, since the firstborn does not receive twice as much of money that came into existence after his father’s death. According to this, one must consider Rav Nahman’s answer that they divide it by days. Seemingly, the firstborn should likewise not receive twice as much from the work performed by the slave [or animal] after their father’s death, since this work did not exist at the time of their father’s death. The rule is that, with regard to any increase that came into existence after their father’s death, the firstborn does not receive twice as much. If so, why does the firstborn receive twice as much as his brother from the work of the slave or animal? Tosafot raised this difficulty below [123b, sv. “it was”] concerning Rav Nahman’s words. See there, where they answered that when the firstborn demands division and his brothers do not wish to divide, in such a case the firstborn receives twice as much even from the increase [as explained by the Ketzot HaHoshen, section 278, subsection 2]. See also the lectures of Rabbi Shmuel here, where he cited that the Rishonim themselves dispute the fundamental issue of whether the work of the slave or animal is considered “due” property. The difficulty of Tosafot is commonly resolved on the basis of the principle established by Rabbi Shimon Shkop, section 5: ownership of an object can be divided according to periods of time. That is, during one period the entire object is owned by Reuven, and during another period the entire object is owned by Shimon. Accordingly, he explained there that when they divide it by days, the meaning is not that the slave or animal remains owned by both of them throughout the entire period and they divide its uses. Rather, when one of them uses the object, at that time the object itself is entirely owned by him; and when the other uses the object, the object itself is then entirely owned by the second brother. Accordingly, Tosafot’s difficulty does not arise. Their difficulty applies only if we regard the work of the slave or animal as part of the division of the inheritance; in that case, one can ask that with regard to an inheritance that comes into existence after the father’s death, the firstborn does not receive twice as much. But according to the above principle of Rabbi Shimon, since it was established in advance that during those two days the cow and slave belong to the firstborn, the increase produced during those periods belongs to him. He does not receive that increase as an inheritance, but as property of his that produced an increase, and this is not “due” property. But Rava, who objected, “How do they divide it?”, refused to say that the division would be in this manner, and his reasoning will be explained in the note .

Meitivei:

an objection from a Mishna to Rav Yehuda, who maintains the law of gud o agud.

We learned in the Mishna:

One

who was the slave of two partners, and one of them emancipated him, with the result

that he is half a slave

since the other partner did not emancipate him and he remains his slave

and half free

because one partner emancipated him.

The law of this slave is that he

works for his master

who did not emancipate him

one day, and for himself one day

because he is half free.

These are the words of Beit Hillel!

Beit Shammai say:

Regarding what you said, that he works for his master one day, in this

you have remedied the situation of his master,

for the slave continues to work for him; but

the

slave

himself you have not remedied,

because this slave is unable to marry. For although a slave is forbidden to marry a free woman, he is permitted to marry a maidservant. After his emancipation, he is forbidden to marry a maidservant but is permitted to marry a free woman. But this one, who is half a slave and half free,

cannot marry a maidservant,

since he is half free, and a free man is forbidden to marry a maidservant; and likewise

he cannot marry a free woman,

since he is half a slave, and a slave is forbidden to marry a free woman.

You might say:

Let him remain idle

and not marry a woman.

But was the world created for anything other than procreation, as it is stated: “He did not create it for emptiness”

The Holy One, blessed be He, did not create the world for emptiness—that there should be no people in it—but rather

“He formed it to be inhabited”

so that human beings would inhabit it. If so, we may not leave him without marrying, since he must fulfill the command, “He formed it to be inhabited.”

Rather,

for the sake of the betterment of the world

so that one who is half a slave and half free will be able to marry a woman,

we compel his master

to emancipate him ,

and make him free,

and thereby he can marry a free woman.

But the slave must pay his master in exchange for his emancipation,

and

therefore

a document is written:

the slave writes his master a promissory document

for half his value,

for half the slave’s value [since only half of him belonged to his master], and after he is emancipated he must discharge the document and pay.

And Beit Hillel returned to rule in accordance with the words of Beit Shammai!

And we raise a difficulty: The slave and his master are partners, since half of the slave belongs to the master and the other half belongs to the slave himself. If so, even without this reason of the betterment of the world, the slave could compel his master to emancipate him. According to Rabbi Yehuda, who maintains that one partner can say to the other, “Gud o agud,” the slave could likewise say to the master: I wish to dissolve the partnership and purchase the share that you own in me . Why, then, did Beit Shammai and Beit Hillel need the reason of “the betterment of the world”?

And we answer:

This case is different:

This partnership between the slave and his master differs from other types of partnership. In an ordinary partnership, one partner can say to the other, “Gud”—you purchase my share—or “Agud”—I will purchase your share from you. But here, although

there is agud,

the slave can say to his master: Sell me the share that you own in me,

there is no gud,

for he cannot offer the master to purchase the “free” portion of him. Since he has been emancipated, he can no longer sell himself as a slave .

And although he can sell himself as a Hebrew slave, this is not considered gud. For a Hebrew slave can be sold only for six years. It follows that he would be saying to the master: “Gud”—purchase my share for six years of labor—or “agud”—sell me the share that you own in me for lifelong labor. Thus, the gud and agud are not equivalent .

Ta shma!

A proof for Rav Naḥman, who maintains that the law of gud o agud does not apply.

Two brothers, one poor and one wealthy, whose father left them

as an inheritance a

bathhouse

or

an olive press

[in which olives are crushed for their oil].

When the brothers come to divide the inheritance, if

their father made them

[the bathhouse or olive press]

for rental,

in order to rent them to others, in this case the brothers likewise continue to rent out the bathhouse and olive press, and

the rental income is shared equally

and they divide the income equally.

The Gemara asks:

But perhaps

how can you infer from this that Job lived in the days of Ahasuerus? It is possible to say that Job lived

in the days of David, for

surely

it is written

with regard to David [I Kings, chapter 1, verse 3]: “

And they sought a beautiful young woman

throughout all the borders of Israel.”

The Gemara resolves: The verse in Job, “And there were not found women as beautiful as Job's daughters throughout the land,” cannot be compared with the verse stated with regard to David, “And they sought a beautiful young woman throughout all the borders of Israel,” because

there,

with regard to David, it says

“throughout all the borders of Israel,”

whereas

here,

with regard to Job, it says

“throughout the land.”

Rabbi Natan says: Job lived in the days of the kingdom of Sheba [

during the period of King Solomon ],

as it is stated [

Job, chapter 1, verse 15 ]: “

And Sheba fell upon them and took them.”

When the afflictions began to come upon Job, the angel informed Job that his flocks and servants had been captured by the queen of Sheba. This proves that Job lived in the days of the queen of Sheba.

And the Sages say: Job lived in the days of the Chaldeans,

in the time of Nebuchadnezzar,

as it is stated

in Job, chapter 1, verse 17: “

The Chaldeans formed three companies and fell upon the camels.” From the fact that a Chaldean force attacked Job, the Sages learned that Job lived in the days of Nebuchadnezzar.

and raided the camels.” From the fact that a Chaldean force attacked Job, the Sages inferred that Job lived in the days of Nebuchadnezzar.

And some say,

Job lived in the days of Jacob, and he married Dinah, Jacob's daughter .

For

it is written here

in Job [chapter 2, verses 9–10]: “And his wife said to him, ‘Do you still maintain your integrity? Curse God and die.’ And he said to her:

You speak as one of the disgraceful women speak,”

and it is written there

in Genesis [chapter 34, verse 7]: “‘…

for he had committed a disgraceful act in Israel by lying with Jacob's daughter.’” We derive a gzera shava from the expression “disgraceful,” which is stated with regard to Dinah, to teach you that Job said to Dinah, “You speak as one of the disgraceful women speak.” It follows that he lived in the days of Jacob.

The Gemara now returns to explain the dispute among the tanna'im as to whether Job was an Israelite or from the nations of the world.

And all these tanna'im,

all the tanna'im who disputed above as to when Job lived, all of them

hold

that Job was an Israelite,

as will be explained below,

except

for

“some say,”

who said that Job lived in the days of Dinah.

If it enters your mind

that all those tannaim cited above hold that Job

was from the nations of the world,

this is impossible, for according to all those tannaim, Job lived after the death of Moses. And

after Moses died, did the Divine Presence rest

—did it rest

upon the nations of the world?!

And

did

the Master not say: Moses requested that the Divine Presence should not rest upon the nations of the world, and it was granted to him, as it is stated:

in Exodus 33:16, that Moses our Master requested of the Holy One, blessed be He: ‘

that I and Your people be distinguished’,

so that the Divine Presence would not rest upon the nations of the world, and thereby the Jewish people would be distinguished from the other nations. And afterward the Holy One, blessed be He, said to him: ‘I will do this thing also that you have spoken’ . It follows that since Job was a prophet and the Divine Presence rested upon him, he must have been from Israel.

However, according to the view of those who hold that Job lived in the days of Dinah, there is no proof that Job was from Israel, for that period preceded the period of Moses, and at that time the Divine Presence also rested upon the nations of the world

Rabbi Yohanan said: The generation of Job was steeped in licentiousness, as it is stated

[Job 27:12] ‘

Behold, all of you have seen it; why then do you speak utter vanity.’

And it is written

in the Song of Songs: ‘

Return, return, O Shulammite; return, return, that we may gaze upon you.’

The expression ‘that we may gaze upon you’ denotes licentiousness, referring to gazing at women. [The verse is understood allegorically to mean that the idolaters say to Israel: Return to our Torah, and commit licentiousness with us ].

The Gemara derives this by means of a gzera shava, from the expression ‘that we may gaze’ stated in Proverbs to the expression ‘you have seen it’ stated in Job. The meaning of ‘you have seen it’ is therefore licentiousness, and this is what Job said to his companions: All of you have ‘seen it’—that is, all of you are steeped in licentiousness .

The Gemara raises an objection:

Say

that when Job said to his companions, ‘All of you have seen it,’ he was not referring to licentiousness, but rather to having seen

through prophecy,

for we find that prophecy is referred to as a ‘vision,’

as it is written: ‘

The vision of Isaiah son of Amoz’!

The Gemara answers:

If so,

if the meaning is that you saw through prophecy, ‘

why then do you speak utter vanity’—

why mention it ?

Why did Job continue and say to them regarding the prophetic vision: ‘You speak utter vanity’?

And Rabbi Yohanan said: What is the meaning of that which is written

in the Scroll of Ruth: ‘

And it was in the days when the judges judged’?

What is the meaning of the repetition, ‘when the judges judged’?

Rather, it refers to

a generation that judged its judges.

The judges themselves were corrupt, and when they judged, the litigant had an opening to say to the judge: You yourself are not innocent; how then can you judge me?