Bava Batra 23b (כג:) — the Talmud in English

Mishna:

A fledgling

a young pigeon

found within fifty cubits

of the dovecote,

belongs to the owner of the dovecote.

For we presume that the fledgling came from this dovecote, and we return it to the owner of the dovecote.

If it is found beyond fifty cubits, it belongs to the one who finds it.

If the fledgling is found beyond fifty cubits from the dovecote, we do not presume that it came from this dovecote. Rather, it is unknown from where it came, and since it has no identifying mark, it belongs to the one who finds it.

If it is found

the fledgling

between two dovecotes, equidistant from this one and equidistant from that one, it belongs to both of them jointly.

The one to which the fledgling is closer owns it.

If it is exactly halfway between them, they divide it.

If it is found at an equal distance from the two dovecotes, it is uncertain from which dovecote it came, and therefore they divide it between them.

Gemara:

Rabbi Ḥanina said: When there is a majority and proximity—

we follow the majority!

When there is a conflict between the indication provided by the majority and the indication provided by proximity, the ruling follows the majority.

That is, when the principle of majority requires us to determine that an object belongs to Reuven, while the principle of proximity requires us to determine that it belongs to Shimon, we decide according to the majority.

And although both majority and proximity are principles of Torah law, nevertheless, the majority is superior.

Even though the rule that we follow the majority is a principle of Torah law, derived from the verse, “After the majority to incline,” which teaches that a court decides a case according to the majority of the judges; and even though the rule that we follow proximity is also a principle of Torah law, derived from the law of the heifer whose neck is broken, regarding which the Torah states that the city nearest to the corpse must bring the heifer whose neck is broken, nevertheless, the determination based on a majority takes precedence over the determination based on proximity. Even when the proximity makes it reasonable to assume that the object came from there and not from elsewhere, we still follow the majority rather than the proximity.

Rav Zeira raised an objection

to him from the verse concerning the heifer whose neck is broken: “

And it shall be that the city nearest to the corpse,”

it is that city which must bring the heifer whose neck is broken, for we presume that the murderer came from there,

even though there is another city larger than it.

Even though there is another city in which more people live, nevertheless, the Torah states that the city nearest to the corpse must bring the heifer whose neck is broken. It is thus proven that we determine according to proximity rather than according to the majority.

The Gemara answers:

When there is no such city.

This is referring to a case in which there is no other city there with a larger population.

But the Gemara asks:

Let us follow the majority of the world,

let us follow the majority of the world! That is, although there is no other city near the corpse with a larger population, there is nevertheless another city elsewhere, farther away, whose population is larger. And the rule is that when there are majority and proximity, we follow the majority.

The Gemara answers:

It is a city situated between mountains.

This is referring to a case in which the corpse is found between mountains, where murderers do not ordinarily come from other places. Rather, it is certain that the murderer came from one of the towns near the corpse, and since no town has a larger population than the nearest city, we presume that the murderer came from the nearest city. The Gemara continues to ask:

We learned:

we learned in our Mishna:

A fledgling found within fifty cubits belongs to the owner of the dovecote.

Even though there is another one larger than it.

It is apparent from the Mishna that if the fledgling is found within fifty cubits of a dovecote, it belongs to the owner of that dovecote, even though there is another dovecote there containing more fledglings. Nevertheless, we follow the nearer dovecote. This is difficult for Rabbi Ḥanina.

The Gemara answers:

When there is no such dovecote.

This is referring to a case in which there is no other dovecote there.

The Gemara asks:

If so, say the latter clause: If it is found beyond fifty cubits, it belongs to the one who finds it.

And if there is no other dovecote, it certainly fell from that one!

If we say that this is referring to a case in which there is no other dovecote, the latter clause is difficult, as it states that if the fledgling is found beyond fifty cubits, it belongs to the one who finds it. If there is no other dovecote besides this one, we should certainly presume that the fledgling came from this dovecote, even though it is beyond fifty cubits. We do not presume that it fell from passersby, because whenever it is possible to attribute it to a nearby dovecote, we do not attribute it to people who dropped it, since dropping an item is uncommon. If so, why does it belong to the one who finds it?

And one cannot answer that this is referring to a case in which there is another dovecote there containing the same number of fledglings as this one, and therefore it is uncertain to whom the fledgling belongs. The wording of the Mishna indicates that if the fledgling is found beyond fifty cubits, it belongs to the one who finds it even when it is closer to this dovecote than to the other dovecote. And if the two dovecotes are equal, why should we not follow the dovecote that is closer? Rather, it must be that there is no other dovecote there at all. If so, it is difficult: Why does it belong to the one who finds it!?

The Gemara answers:

Here, with what are we dealing? With one that is creeping along.

Here, we are dealing with a fledgling that is creeping along, as it is young and cannot fly; it can only move along a little at a time.

For Rav Ukva bar Ḥama said: Anything that creeps along does not creep along more than fifty cubits.

One that can only creep along and cannot fly does not creep along more than fifty cubits. Therefore, if it is found within fifty cubits, we presume that it came from this dovecote. But if it is beyond fifty cubits, it must have already grown and is no longer merely creeping along; rather, it is capable of flying. If so, it is possible that it came here from elsewhere, and when there are majority and proximity, we follow the majority. Therefore, we presume that it came here from elsewhere, as there are many dovecotes throughout the world.

Rabbi Yirmeya raised a dilemma: If one of its legs is within fifty cubits and one of its legs is beyond fifty cubits, what is the halakha?

If one of the fledgling’s legs is within fifty cubits and its other leg is beyond fifty cubits, is it still considered to be creeping along and does it belong to the owner of the dovecote? Or is it no longer considered to be creeping along, since it is impossible for it to creep along with one of its legs beyond fifty cubits, and it must therefore be considered capable of flying? If so, it belongs to the one who finds it.

And because of this, they removed Rabbi Yirmeya from the beit-midrash.

Because of this question, they removed Rabbi Yirmeya from the study hall. Since the Sages established that anything that creeps along does not creep along more than fifty cubits, it is impossible for it to creep even slightly beyond that distance, such that one of its legs would be beyond fifty cubits. This is like all the measures established by the Sages, which are exact and precise. In order to prevent people from questioning the measures of the Sages, they removed him from the study hall.

Ta shma

a proof that Rabbi Ḥanina’s opinion is not correct, from what we learned in our Mishna:

If it is found between two dovecotes: If it is closer to this one, it belongs to it; and if it is closer to that one, it belongs to it.

The Gemara infers:

Even though one of them is larger than the other.

The unqualified wording of the Mishna indicates that everything depends on proximity and not on the size of the dovecote. Rather, even if one dovecote is larger than the other, we follow the nearer one, which is difficult for Rabbi Ḥanina. The Gemara answers:

Here, with what are we dealing? With a case in which the two are equal.

The Mishna is speaking of a case in which the two dovecotes contain equal numbers of fledglings.

The Gemara asks:

Let us follow the majority of the world,

let us follow the majority of the world. That is, let us say that the fledgling came from other dovecotes located elsewhere, in which case it should belong to the one who finds it, as in the latter clause of the Mishna. The Gemara now understands that “found between two dovecotes” also applies to a fledgling found beyond fifty cubits, and therefore it raises the difficulty that in such a case we should presume that it came from elsewhere.