Bava Batra 58b — the Talmud in English

He said to them

Rabbi Banaah:

But if so

as it is written here, then if

a person from the outside comes ![](pamud.bmp "

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and summons him to judgment

[if a person comes and summons the judge to judgment], and

disqualifies him

[has already disqualified him], even though the judge was found innocent!?

Rather,

write as follows:

Any judge who is summoned to judgment and money is extracted from him by judgment

[a judge who was sued and was found liable, so that money was extracted from him by judgment]—

is not called a judge!

And indeed

they wrote thus,

as an addition: “

However, the elders of the Jews

[the sages of the Jews]

say: “

Any judge who is summoned to judgment and money is extracted from him by judgment is not called a judge.”

Further,

Rabbi Banaah saw

Rabbi Banaah,

that it was written

on the city gate: “

At the head of all illnesses I am blood; at the head of all life I am wine

[the head of all deaths is blood, which was not let; the head of all life is wine, which gives life to all who drink it].”

Rabbi Banaah said to them:

But if so:

One who falls from a roof and dies, and one who falls from a palm tree and dies,

then is it so that

blood killed him

[one who falls from the upper story and dies, or one who falls from the palm tree and dies—is it blood that killed him]!?

And further: One whose way is to die,

then is it so that

if they give him wine, he will live

[if a person in the throes of death, whose way is to die, is given wine, will he live]!?

Rather, this is what must be written

[this is how they must write]: “

At the head of all illnesses I am blood; at the head of all remedies I am wine

[the head of all illnesses is an excess of blood, and the head of all remedies is wine].”

And indeed

they wrote

[added]

thus: However, the elders of the Jews say: At the head of all illnesses I am blood; at the head of all remedies I am wine; in a place where there is no wine—

there medicines are required

[in a place where there is no wine, there medicines are needed].

The Gemara relates that

it was written at the entrance of Cappadocia

[at the entrance of the city of Cappadocia]:

anpak, anbag, and antal,

that is to say: all these measures are one measure, and it was written there so that all the inhabitants of the city would know this; and there is a practical consequence for buying and selling.

And

the Gemara explains:

Which is an antal

[what is the measure of that antal]:

It is a quarter of the Torah

, namely, a quarter of a log.

Mishna:

The following mishnayot and the passages of the Gemara deal with “presumption of usage.”

A. This presumption means that if a person uses his fellow’s property, and his fellow does not protest against him, he becomes established in this usage; and once it has become established that he has a “presumption of usage,” his fellow can no longer prevent him from continuing to use his property, even against his will!

B. A presumption of usage applies whether a person uses his fellow’s property—for example, when he places a ladder in his fellow’s courtyard so that he can ascend from it, by means of the ladder that he places in his fellow’s courtyard, to the roof of his house—or whether he does not use his fellow’s property, for example, when he opens a window in the wall of his house, and the window faces his fellow’s courtyard. He is forbidden to do so because of damage caused to his fellow by seeing; but if he established his opening of the window without his fellow protesting against him to close it, then he has a presumption of usage for opening the window toward his fellow’s courtyard, and his fellow cannot demand that he close the window.

C. The presumption of usage applies only when one makes constant use, and it appears from his usage that he will do so forever. But usage that is not constant, or from which it does not appear that he intends to use it forever, is not a presumption, because the fellow who owns the property does not care about such usage; and the entire presumption of usage is based on the owner’s silence in not protesting against the user, as will be explained below. [Netivot, sections 140 and 153].

D. Our early authorities disagreed concerning the definition of this presumption:

Does it prove that an acquisition was made between the owners of the property and the user concerning the right of usage, and that the user acquired it by virtue of the acquisition, while the presumption is merely evidence of the acquisition made between them? According to this side, the presumption is effective only if it is joined by the user’s claim that he acquired the right of usage.

Or is a presumption of usage created by the owners’ silence, because they waived their claim against the user by not protesting against him? According to this side, even if the user does not claim that he acquired the right of usage, but only claims that he used his fellow’s property without the latter protesting against him, he acquires the usage of the property by virtue of the very fact of his using it without its owners’ protest! [See Rashba 28b, s.v. “Rather,” and Ketzot HaChoshen, section 153:3, and Netivot HaMishpat, section 192].

E. Likewise, our early authorities disagreed whether this presumption requires three years, as with a presumption concerning land, or whether from the moment that the owner of the property sees the usage of his property and does not protest, the presumption is created.

And the matter depends on the previous dispute, because if we say that a claim of acquisition is not required, then there is also no need for a presumption of three years, which is merely evidence that there was an act of acquisition of the land and the document was lost.

The following Mishna is a continuation of the previous Mishna, in which we learned: These are matters that have a presumption, and these are matters that do not have a presumption.

Their gutters, which were made to drain water from the roof, consisted of two parts: a mazḥila, which is a split pipe fixed along or across the roof, into which the water from the sloping roof pours [similar to ours on tiled roofs]; and that mazḥila had two drainage openings on its two sides. Sometimes he opens the one on one side and attaches to its opening a gutter, which is a small pipe through which the water drains so that it will not fall upon the wall but at a distance from it; and sometimes he places the gutter on its other side, and the water drains through there.

The gutter

that pours water from a person’s roof into his fellow’s courtyard,

does not have a presumption,

the owner of the gutter cannot claim: I acquired the right to pour water into your courtyard. For their gutters were not fixed, and sometimes he placed the gutter at one end of the pipe extending along the roof, and sometimes he placed it at its other end; and since it is not a fixed matter, the owner of the courtyard does not take care to protest against it even for three years, and his silence in not protesting is not evidence. This will be explained further in the Gemara.

And

however,

its place has

of the gutter

a presumption.

This will be explained in the Gemara.

The mazḥila

[the pipe extending along the roof, at whose end he places a gutter to pour into the courtyard],

has a presumption,

and this will be explained further in the Gemara.

An Egyptian ladder,

which is a small, movable ladder that a person placed in his fellow’s courtyard in order to ascend by means of it to his dovecote and his roof,

does not have a presumption.

Because since it is small and movable, the owner of the courtyard does not take care to protest against its use.

And

however,

a

ladder

Tyrian,

which is large and fixed,

has a presumption.

One who opens

an Egyptian window,

within the wall of his house, with the window facing his fellow’s courtyard—and it is a small window that is not used regularly, and he made it in order to look through it from time to time toward his gardens and orchards—

does not have a presumption.

And

however,

a

window

Tyrian,

which is large,

has a presumption,

because the owner of the courtyard should have protested, since its use is frequent.

Which is “

an Egyptian window,”

which does not have a presumption?

Any one through which a person’s head cannot enter.

Rabbi Judah says: If it has a frame

[a frame around the opening],

even though a person’s head cannot enter it, this is a presumption,

because by this it is made into an important window, and the owner of the courtyard should have protested against its construction.

Gemara:

The Gemara discusses:

What

is the explanation of what we learned in the Mishna: “

The gutter does not have a presumption, but its place has a presumption”?

The Gemara brings three explanations:

1.

Rav Judah said in the name of Shmuel: This is what the tanna means

the tanna:

The gutter—

does not have a presumption from one side.

Even if the gutter poured water regularly from one side of the mazḥila, it does not have a presumption enabling him to claim that he acquired the right always to pour through the gutter from this side. Rather, the owner of the courtyard can say to him: Take your gutter from this end of the mazḥila, and place it at the other end of the mazḥila. And it goes around in turn, according to the will of the owner of the courtyard.

And its place has a presumption from both sides.

The owner of the courtyard cannot remove it entirely from both sides, for had the owner of the courtyard not given him this right, he certainly would not have allowed him to do so.

2.

Rabbi Hanina said,

he explained it as follows:

The gutter—

does not have a presumption, for if it was long, he shortens it.

For if the owner of the roof extended the water’s discharge a great distance from the wall of his house, deep into the area of the neighbor’s courtyard, he must shorten it. That is, the owner of the courtyard can require him to shorten it.

And its place has a presumption, for if he comes to uproot it

entirely,

he does not uproot it.

3.

Rav Yirmeya bar Abba said,

he explained it as follows:

The gutter—

does not have a presumption, for if he wants

the owner of the courtyard

to build beneath it,

beneath the gutter, then he

builds.

the owner of the courtyard

And its place has a presumption, for if he comes

the owner of the courtyard

to uproot it,

the gutter entirely, because the owner of the courtyard wants to raise his construction beneath the gutter up to the place of the gutter,

he does not uproot it.