Bava Batra 23a (כג.) — the Talmud in English

And the Gemara relates:

Rav Yosef had these small palm trees,

Rav Yosef had small palm trees,

which were

visited by craftsmen, who would sit beneath them.

Bloodletters would come and sit on the ground beneath the foliage of his palm trees, and would let blood there,

and ravens would come, eat the blood, ascend the palm trees, and ruin the dates.

Ravens would come and eat the blood that had spilled beneath the palm trees, and then ascend the palm trees and wipe their bloodstained mouths on his dates, thereby ruining them.

Rav Yosef said to them: “Remove the ravens from here,”

meaning: remove the ravens from here, which appeared to be calling out “kurkur” in their cries. That is, he asked them no longer to let blood beneath the foliage of his palm trees.

Abaye said to him: “But this is merely indirect causation!”

They merely cause the ravens to come and soil the dates!?

He said to him

Rav Yosef said to Abaye:

“This is what Rav Tovi bar Matנה said: This proves that indirect causation with regard to damages is prohibited!”

But Abaye asked him again:

“But they have established a presumption of usage!”

They have already had a three-year presumption of usage with regard to letting blood there, and if so, how can you protest against them now?

Rav Yosef answered him:

“But didn’t Rav Naḥman say in the name of Rabba bar Avuha: There is no presumption of usage with regard to damages?”

A presumption is ineffective with regard to something that causes damage, because although he remained silent until now, this was because he thought he would be able to tolerate it; but now he can no longer tolerate it.

Abaye asked him:

“And was it not stated concerning this matter,”

was it not taught concerning this statement of Rav Naḥman in the name of Rabba bar Avuha that it refers specifically to severe damages? For

Rav Mari said: ‘With regard to smoke,’

the statement of Rav Naḥman that there is no presumption of usage with regard to damages applies only to damage resembling the smoke of a furnace, which is severe and especially harmful, and which no person can tolerate.

And Rav Zevid said: ‘With regard to a bathroom.’

A type of damage such as a bathroom situated on the ground and visible to the eye, which produces an especially foul odor.

But here, with regard to ravens, the damage is not so severe as smoke or a bathroom. If so, a presumption should be effective in this case.

He said to him

Rav Yosef said to Abaye:

“These, for me, as I am sensitive, are comparable to smoke and a bathroom.”

For me, since I am fastidious, what the ravens do disturbs me like smoke and a bathroom; therefore, they do not establish a presumption of usage with regard to damages.

Mishna:

One must distance a dovecote fifty cubits from the city.

One must distance the dovecote fifty cubits from the city, because the pigeons damage the seeds in the gardens and the grain that the residents of the city spread out on the roofs of the city.

And a person may not construct a dovecote within his property unless he has fifty cubits in every direction.

He may not construct a dovecote within his field, even if it is far from the city, unless there are fifty cubits in every direction, so that the pigeons of the dovecote will not damage other fields adjacent to his field.

Rabbi Yehuda says: A house of four kor of space, filled with the flight of a pigeon.

Rabbi Yehuda disagrees with the first tanna and maintains that fifty cubits are insufficient; rather, one must leave a house of a kor in every direction, which is approximately 273 and six-sevenths cubits, and altogether this amounts to a house of four kor. This is the distance that a pigeon travels while eating, namely, “filled with the flight of a pigeon.” “Flight” (sheger) is like “sending forth,” as one sends forth the pigeon and it flies.

The first tanna also agrees that the pigeon travels this distance; however, the first tanna maintains that it eats only within fifty cubits.

And if he purchased even a quarter-kav area, it remains under its presumptive status.

If one purchased from another person land on which there was a dovecote, and the original owner had maintained it for three years, even if there was only a quarter-kav area around it—which is approximately ten and one-fifth cubits by ten and one-fifth cubits—he need not distance it, because since the original owner had maintained it in this manner, we assert that he had purchased the right to maintain a dovecote there. Therefore, the second owner, who derives his rights from him, also need not distance it.

Gemara:

We learned in the Mishna: One must distance the dovecote from the city

fifty cubits.

The Gemara wonders:

“And no more?!”

Is it sufficient to distance it only fifty cubits and no further?

And we raise a contradiction,

from the following baraita, in which we learned:

“One may not spread traps for pigeons unless the trap is thirty ris from an inhabited area.”

One may not spread traps to catch pigeons unless the trap is thirty ris from the inhabited area, so that he will not trap the pigeons belonging to the inhabited area. A ris is 266 and two-thirds cubits. Thirty ris are therefore four mil, which are eight thousand cubits, whereas from the Mishna we learned that a distance of only fifty cubits is sufficient.

Abaye said: “They fly very far, but their stomachs are filled within fifty cubits.”

They travel as far as thirty ris; therefore, one must distance the trap thirty ris so that he will not trap the pigeons of the inhabited area. But when pigeons travel, they eat whatever they find, and by fifty cubits they have already filled their stomachs. When they travel farther, they no longer eat. Therefore, one need not distance the dovecote from the city by more than fifty cubits, since the pigeons cause no damage there, as they do not eat beyond that distance.

The Gemara asks:

“And do they fly thirty ris, and no more?”

Do they travel only thirty ris and no farther?

But wasn’t it taught: “And in an inhabited area, he may not spread a trap even within one hundred mil?”

This is a continuation of the preceding baraita, which states: One may not spread traps for pigeons unless the trap is thirty ris from the inhabited area. When does this apply? In an uninhabited area. But in an “inhabited area,” he may not spread a trap even within one hundred mil.

The Gemara now understood the phrase “but in an inhabited area” to mean a place where there are seeds, to which the pigeons travel more than thirty ris in order to eat the seeds. This is unlike the first clause, which states that one must distance the trap thirty ris from “the inhabited area,” meaning from the city.

If so, we learn from here that pigeons eat even beyond fifty cubits. Therefore, when there is an inhabited area containing seeds, they travel even more than thirty ris.

Rav Yosef said: “In an inhabited area of vineyards.”

According to Rav Yosef, the phrase “but in an inhabited area” in the baraita means “an inhabited area of vineyards,” where there are many vineyards. The pigeon travels first to the nearest vineyard, then from there to a second vineyard, and so it travels from vineyard to vineyard until it is found to have traveled more than thirty ris. Therefore, it is prohibited to spread traps there. But it eats only within fifty cubits.

Rava said: “In an inhabited area of dovecotes.”

The phrase “but in an inhabited area” in the baraita means “an inhabited area of dovecotes,” where there are many dovecotes. The pigeon flies there from one dovecote to another, and in this manner it travels a great distance.

But the Gemara raises a difficulty:

“Why not derive it from the dovecotes themselves?”

If, as Rava says, the case concerns a place where there are many dovecotes, why must it say that one must distance the trap because of the city’s pigeons, which travel from dovecote to dovecote? Surely even without this, one must distance it because of the pigeons of the dovecotes that are near his trap, since Rava established that the case concerns an inhabited area of dovecotes. Yet from the wording of the baraita, which states, “Even within one hundred mil he may not spread a trap,” it seems that the distance is required because of the pigeons of the city.

The Gemara answers this question in three ways:

“If you wish, say: They are his,”

one may answer that the dovecotes near his trap belong to him; therefore, he need not distance the trap on their account.

“And if you wish, say: They belong to a gentile.”

One may answer that the dovecotes belong to a gentile; therefore, he need not distance the trap on their account.

“And if you wish, say: They are ownerless.”

One may answer that the dovecotes are ownerless.

We learned in the Mishna:

“Rabbi Yehuda says: Up to a house of four kor, and so on,”

and if he purchased even a quarter-kav area, it remains under its presumptive status.

Rav Pappa said, and some say

that

Rav

Zevid

said this:

“This proves that claims are asserted on behalf of a purchaser, and claims are asserted on behalf of an heir.”

We learn from this statement of the Mishna that when one purchases a field with a dovecote, or inherits a field with a dovecote, and the original owner had maintained it for three years, the court asserts on his behalf that the original owner had purchased the right to maintain a dovecote within his field.

But the Gemara asks:

“An heir—we already learned this!”

The ruling that claims are asserted on behalf of an heir was already taught in a later Mishna.

As we learned:

“One who comes by virtue of inheritance need not make a claim.”

If one received land by inheritance, and another person contested his father’s right to the land, while his father had held it for three years, the heir need not claim that his father, who bequeathed the land to him, had purchased the field from the person now contesting him and claiming that the field belongs to him. Even when that person brings witnesses that the field had previously belonged to him or to his father, we assert on the heir’s behalf that his father had purchased the field from the claimant, since his father had already held it for three years.

And since we already learned the ruling that claims are asserted on behalf of an heir, why did the Mishna need to state it here as well? The Gemara answers:

“The purchaser was necessary for him.”

Rav Pappa explains that the tanna needed to teach the ruling that claims are asserted on behalf of a purchaser, which we learned only from our Mishna; incidentally, he also said that this provides proof that claims are asserted on behalf of a purchaser.

But the Gemara asks:

“A purchaser too—we already learned this!”

The ruling that claims are asserted on behalf of a purchaser was also taught in a later Mishna.

As we learned:

“If one purchased a courtyard containing projecting beams and balconies, it remains under its presumptive status.”

If one purchased a courtyard containing zezīn, small beams projecting outward from the house, or gazoztra’ot, large beams on which one can stand that project outward from the house, the halakha being that it is prohibited to extend beams and balconies from the house into the public domain, because the residents of the public domain could stumble over them, nevertheless, if the seller had maintained them—if he had possessed the beams and balconies for three years—and then sold the house and courtyard to another person as they were, together with the beams and balconies, we assert that the original seller had acquired the right to extend the beams and balconies. Therefore, the purchaser need not remove them.

It is clear from here that claims are asserted on behalf of a purchaser.

If so, how could Rav Pappa say that this matter is to be learned from our Mishna?

The Gemara answers:

“It is necessary,”

the tanna needed to teach both our Mishna and the later Mishna.

“For had he taught us only that case, concerning the public domain,”

with regard to beams and balconies extended into the public domain,

“one might say that he had set the building back within his own property.”

It would have been possible to say that he had set the building back within his own area: He had not built the house to the edge of his property, but had set it inward, and extended the beams and balconies only to the edge of his property and no farther. He then granted the residents of the public domain permission to pass through his area up to his house. In such a case, he need not remove the beams and balconies, since they project only within his property. And since the seller had maintained this arrangement for three years, it is possible to assume that this was indeed the case: He had set the building back within his own property.

“Alternatively, the residents of the public domain waived their rights to him.”

It is also possible to assume that the residents of the public domain waived their rights with regard to the beams and balconies he extended. That is, the seven leading men of the city, in the presence of the residents of the city, who have the authority to waive the public’s rights, waived them for him.

The reason we assume one of these two possibilities is that otherwise it is unlikely that he succeeded in extending the beams and balconies into the public domain and maintaining them for three years, since surely the public would have prevented him from doing so.

“But here, it is not so.”

But here, in our Mishna, where the case is that his dovecote is within fifty cubits of his neighbor’s field, who is an individual, there is no proof from the fact that the seller maintained it for three years that the other person waived his rights. It is possible to say that he was a violent and powerful person, and the other person was afraid of him; therefore, he succeeded in maintaining it for three years. If so, it is possible that the purchaser must remove the dovecote. Therefore, the tanna needed to teach us in our Mishna that even in this case we assume, on the basis of the original owner’s having maintained it, that it is reasonable to say that the other person waived his rights.

“And had he taught us only here,”

if the tanna had taught us only the case in our Mishna,

“since he is an individual, one might say that he appeased him,”

since the other person is an individual, it is possible to assume that the owner of the dovecote appeased his neighbor by giving him money so that he would agree to the dovecote being there.

“Alternatively, he waived his rights to him,”

or the other person waived his rights without taking money for it.

“But in the case of the public, who could appease them and who could waive their rights?!”

In the later Mishna, which concerns beams and balconies projecting into the public domain, who has the authority to be appeased in exchange for money or to waive the public’s rights without payment? Although this could be done by the seven leading men of the city in the presence of the residents of the city, nevertheless, such a matter is uncommon. If so,

“one might say: No,”

one might say that we do not assume that the seller appeased them or that they waived their rights. Therefore,

“it is necessary.”

The tanna needed to teach in the later Mishna that nevertheless claims are asserted on behalf of the purchaser, who has the right to continue exercising the rights of the seller.

It follows that both of these Mishnayot needed to teach us that claims are asserted on behalf of a purchaser.

We learned in our Mishna:

“It remains under its presumptive status”:

The Gemara asks:

“But didn’t Rav Naḥman say in the name of Rabba bar Avuha: ‘There is no presumption of usage with regard to damages’?”

If so, how is there a presumption here with regard to damages?

The Gemara answers:

“Rav Mari said: With regard to smoke; Rav Zevid said: With regard to a bathroom”:

Both of them say that Rav Naḥman spoke only about a type of damage that is extremely difficult to tolerate, such as the smoke of a furnace or an exposed bathroom. A dovecote, by contrast, is not so harmful, and therefore a presumption is effective in this case.