Bava Batra 58b (נח:) — the Talmud in English

He said to them

Rabbi Bana'a:

But if that is so,

as it is written here, then if

a person from elsewhere comes

and summons him to court

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

he has been disqualified

[he has already been disqualified], even if the judge is found innocent!?

Rather,

write it as follows:

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

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

is not called a judge!

And indeed,

they wrote it thus

as an addition: “

However, the Jewish Sages

[the Sages of the Jews]

say: ‘

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

Furthermore,

Rabbi Bana'a saw

Rabbi Bana'a,

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

[Blood is the source of all deaths when it is not let; wine is the source of all life, as it gives life to all who drink it].”

Rabbi Bana'a said to them:

But if that is so:

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

is it then the case that

blood killed him

[If one falls from an upper story and dies, or falls from a palm tree and dies, did blood kill him]!?

And furthermore: One whose way is to die—

is it then the case that

if they give him wine, he will live

[If a moribund person who is about to die is given wine, will he live]!?

Rather, this is what should be written

[this is what they should write]: “

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

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

And indeed,

they wrote

[they added]

the following: ‘However, the Jewish Sages say: At the head of all illnesses I am blood; at the head of all remedies I am wine; where there is no wine—

there medicines are required

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

The Gemara relates that

it was written at the entrance to Cappadocia

[at the entrance to the city of Cappadocia]:

Anpak, anbagg, and antal,

that is to say: All these measures are one measure. This was written there so that all the inhabitants of the city would know it, with practical significance for buying and selling.

And

the Gemara explains:

What is an antal

[What is the measure of that antal]?

It is a quarter of the measure prescribed by the Torah,

namely, a quarter-log.

Mishna: The following mishnayot and the discussions of the Gemara deal with “presumptive ownership of usages.”

A. This presumption means that if a person uses his fellow’s property and his fellow does not protest, he acquires a presumption of ownership with regard to this usage. Once he has acquired “presumptive ownership of usages,” his fellow can no longer prevent him from continuing to use his property, even against his will!

B. Presumptive ownership of usages applies whether a person uses his fellow’s property—for example, by placing a ladder in his fellow’s courtyard so that he can climb from there, by means of the ladder placed in his fellow’s courtyard, onto the roof of his house—or whether he does not use his fellow’s property, as in the case of one who opens a window in the wall of his house, with the window facing his fellow’s courtyard. He is forbidden to do so because of the harm caused to his fellow by seeing into his property; but if he established his right to keep the window open without his fellow protesting that he close it, he has presumptive ownership of the usage of opening the window toward his fellow’s courtyard, and his fellow cannot demand that he close the window.

C. Presumptive ownership of usages applies only when the usage is permanent and it appears from the nature of the usage that he intends to use it in this manner forever. But a usage that is not permanent, or where it does not appear that he intends to use it forever, does not establish a presumption. This is because the owner of the property does not object to such a usage, and the entire basis of presumptive ownership of usages is the owner’s silence in failing to protest against the user, as will be explained below. [Netivot, sections 140 and 153.]

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

Does it demonstrate that an acquisition was made between the owners of the property and the user with regard to the right of usage, so that the user acquired the right through that acquisition, while the presumption is merely evidence of the acquisition made between them? According to this view, the presumption is effective only when accompanied by the user’s claim that he acquired the right of usage.

Or is presumptive ownership of usages created by the owners’ silence, indicating that they waived their rights by not protesting against the user? According to this view, even if the user does not claim that he acquired the right of usage, but merely claims that he used his fellow’s property without the latter protesting against him, he acquires the right to use the property by virtue of the usage itself without a protest by its owner! [See Rashba 28b, s.v. “Rather,” and Ketzot HaChoshen, section 153:3, and Netivot HaMishpat, section 192.]

E. Likewise, our early authorities disagreed as to whether this presumption requires three years, as does presumptive ownership of land, or whether the presumption is created as soon as the owner sees the usage of his property and does not protest.

This depends on the preceding dispute. If we say that a claim of acquisition is not required, then three years of presumptive ownership are likewise not required, since the three years serve only as evidence that an act of acquisition took place with regard to the land and the document was lost.

The following Mishna continues the preceding Mishna, in which we learned: These are matters that have a presumption of ownership, and these are matters that do not have a presumption of ownership.

Their gutters, which were made to drain water from the roof, consisted of two parts. One was a “channel,” a halved pipe fixed lengthwise or widthwise along the roof, into which the water from the sloping roof flowed [similar to the gutters on our tiled roofs]. This channel had two drainage openings, one on each side. At times, one opened the opening on one side and attached to it a “gutter-spout,” a small pipe through which the water drained so that it would not fall onto the wall but at a distance from it; and at times he placed the gutter-spout on the other side, and the water drained through there.

The gutter-spout

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

does not establish a presumption of ownership,

meaning that the owner of the gutter-spout cannot claim: “I acquired the right to channel water into your courtyard.” Their gutter-spouts were not fixed, and sometimes one placed the gutter-spout at one end of the pipe running along the roof, and sometimes at its other end. Since it was not a permanent arrangement, the owner of the courtyard would not object to it even after three years, and his silence in failing to protest is therefore no evidence [of a grant of rights]. This will be explained further in the Gemara.

And

however,

its location

of the gutter-spout

does establish a presumption of ownership.

This will be explained in the Gemara.

The channel

[the pipe running along the roof, at whose end one places a gutter-spout to channel water into the courtyard]

does establish a presumption of ownership,

and this will be explained further in the Gemara.

The Egyptian ladder,

a small, portable ladder that a person placed in his fellow’s courtyard in order to climb by means of it to his dovecote or roof,

does not establish a presumption of ownership.

Because it is small and portable, the owner of the courtyard does not take issue with failing to protest against its use.

And

however,

a

ladder

of Tyre,

which is large and fixed,

does establish a presumption of ownership.

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, which he made in order to look through it occasionally at his gardens and orchards,

does not establish a presumption of ownership.

And

however,

a

window

of Tyre,

which is large,

does establish a presumption of ownership,

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

What is an

“

Egyptian window,”

which does not establish a presumption of ownership?

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

Rabbi Yehuda says: If it has a frame

[a framework around the opening],

even though a person’s head cannot enter it, this establishes a presumption of ownership,

because the frame renders it an important window, and the owner of the courtyard should have protested against its construction.

Gemara:

The Gemara discusses this:

What

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

The gutter-spout does not establish a presumption of ownership, but its location does establish a presumption of ownership”?

The Gemara offers three interpretations:

1.

Rav Yehuda said that Shmuel said: The tanna is saying as follows

:

The gutter-spout—

does not establish a presumption of ownership with regard to one side. Even if the gutter-spout regularly channeled water from one side of the channel, it does not establish a presumption that he acquired the right for the gutter-spout always to channel water from that side. Rather, the owner of the courtyard can say to him: Take your gutter-spout from this end of the channel and place it at the other end of the channel, and repeat this process as the owner of the courtyard wishes.

And its location establishes a presumption of ownership with regard to both sides.

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

2.

Rabbi Ḥanina said,

he explained it as follows:

The gutter-spout—

does not establish a presumption of ownership, because if it was long, he may shorten it. If the owner of the roof extended the flow of the water far away from the wall of his house, into the interior of the neighboring courtyard, the gutter-spout can be shortened. That is, the owner of the courtyard can compel him to shorten it.

does not create an established usage right, because if it was long, he may shorten it.

And its location establishes a presumption of ownership, because if he comes to remove it

entirely, he may not remove it.

3.

Rav Yirmeya bar Abba said,

he explained it as follows:

The gutter-spout—

does not establish a presumption of ownership, because if he wishes

the owner of the courtyard

to build beneath it,

beneath the gutter-spout, he may

build.

beneath the gutter, he may

And its location establishes a presumption of ownership, because if he comes

the owner of the courtyard

to remove it,

the gutter-spout entirely, because the owner of the courtyard wishes to raise the structure beneath the gutter-spout up to the level of the gutter-spout,

he may not remove it.

the gutter entirely, because the courtyard owner wants to raise the construction beneath the gutter up to the gutter’s level,

he may not remove it.