Babylonian Talmud: Tractate Baba Bathra

Folio 57a

A certain document [was brought into court] bearing the signatures of two witnesses, one of whom had died. The brother of the one who was still alive came with another witness to testify to the signature of the other [the deceased]. Rabina was disposed to decide that this case was covered by the Mishnah of three brothers each associated with the same witness.¹  Said R. Ashi to him: Surely the cases are not on all fours. In that case [if the evidence of the brothers was accepted] three-quarters of the money would not be assigned on the evidence of brothers, but in this case [if we allow this man to testify] three-quarters of the money will be assigned on the evidence of brothers.²

MISHNAH. CERTAIN USAGES CONSTITUTE HAZAKAH, WHILE CERTAIN OTHERS THOUGH SIMILAR DO NOT CONSTITUTE HAZAKAH.³  IF A MAN WAS IN THE HABIT OF STATIONING HIS BEAST IN A COURTYARD OR OF FIXING THERE HIS OVEN, HANDMILL, PORTABLE STOVE OR HEN-COOP, OR OF THROWING HIS MANURE THERE, THIS DOES NOT CONSTITUTE HAZAKAH. BUT IF HE HAS BEEN ALLOWED TO PUT UP A PARTITION FOR HIS BEAST TEN HANDBREADTHS IN HEIGHT, OR FOR HIS OVEN OR HIS STOVE OR HIS HANDMILL, OR IF HE HAS BEEN ALLOWED TO BRING FOWLS INTO THE HOUSE OR TO MAKE A PIT FOR HIS MANURE THREE HANDBREADTHS DEEP OR A HEAP THREE HANDBREADTHS HIGH, THIS CONSTITUTES HAZAKAH.

GEMARA. Why is the rule in the second case different from that in the first?⁴  — 'Ulla said: Any act which confers legal ownership of the property of a deceased proselyte⁵  confers legal ownership of that of a fellow Jew,⁶  and any act which does not confer legal ownership of the property of a deceased proselyte does not confer legal ownership of property of a fellow Jew.⁷  R. Shesheth raised strong objections against this. Is this, [he asked] a general principle?⁸  What of ploughed land which confers ownership of the property of a deceased proselyte but not of that of a fellow Jew?⁹  And what of the gathering of crops, which confers ownership of property of a fellow Jew but not of the property of a deceased proselyte?¹⁰  No, said R. Nahman in the name of Rabbah b. Abbuha;

1. Here too one brother joins with one man as witness to a bond and the other with another man in testifying to the genuineness of a signatures and so the testimony of the two brothers could be regarded as relating to separate things, and they could count as independent witnesses.
2. Each of the two original witnesses is regarded as warranting the assignment of half the money to the holder of the bond. Consequently, each of the witnesses to the dead man's signature is regarded as warranting the assignment of a quarter of the money. Hence three-quarters of the money is assigned on the warrant of two brothers who by rights ought not to count as more than a single witness.
3. If they are allowed to go on without protest for three years, and the claim is supported by a plea of purchase or gift.
4. Why should the making of a partition confer a hazakah and not the mere stationing?
5. On the person who seizes it first. V. p. 181, n. 5.
6. If the latter has said, 'Go, occupy and acquire ownership,' or if he occupied it for three years.
7. According to 'Ulla, therefore, the Mishnah is speaking of an outsider and defining the conditions under which he obtains hazakah in a courtyard.
8. Even though it is correct in respect of this Mishnah.
9. By means of three years' occupation. V. supra 37b.
10. For acquiring the property of a proselyte the essential thing is to perform some action which improves the property; for acquiring hazakah in property formerly belonging to a fellow Jew, the essential thing is to have the usufruct of the property.

we are dealing here with a courtyard belonging to several joint owners, who do not object to [any one of their number] merely stationing things there, but who do object to [his making] a partition there.¹  But do they not object to things being merely stationed [there]? Have we not learnt that joint owners of a courtyard who have vowed to have no benefit from one another are forbidden to enter the courtyard?²  — The truth is, said R. Nahman in the name of Rabbah b. Abbuha, that we are dealing here with the open space behind the houses, where the owners do not mind things being stationed, but where they do mind a partition being made. R. papa said: In both cases [of the vow and of the beast etc.] we are dealing with a courtyard of joint owners, [and the reason why the rule is different is this:] Some owners are particular and some are not. Where the issue is a pecuniary one,³  we take the more lenient view.⁴  But where the issue is one of [breaking] a religious precept,⁵  we take the more stringent view.⁶  Rabina said: Indeed we assume in all cases that the joint owners are not particular,⁷  and the rule [regarding vows] is based on the opinion of R. Eliezer, as it has been taught: R. Eliezer says, One who has vowed to receive no benefit from another is forbidden to take even a makeweight from him.⁸

R. Johanan said in the name of R. Bana'ah: Joint owners of a courtyard can stop one another from using the courtyard for any purpose save that of washing [clothes], since it is not fitting that the daughters of Israel should expose themselves to the public gaze while washing [clothes].⁹  It is written: [The righteous one is] he that shutteth his eyes from looking upon evil,¹⁰  and [commenting on this] R. Hiyya b. Abba said: This refers to a man who does not look at the women when they are washing [clothes]. How are we to understand this? If there is another road, then if [he does not take it] he is wicked.¹¹  If there is no other road, then how can he help himself? — We suppose that there is no other road, and even so it is incumbent on him to hide his eyes from them.¹²

R. Johanan asked R. Bana'ah¹³  how [long] the under-garment¹⁴  of a talmid hakam¹⁵  [should be]. He replied: So long that his flesh should not be visible beneath¹⁶  it. How [long should] the upper garment of a talmid hakam [be]? — So long that not more than a handbreadth of his under-garment should be visible underneath. How should the table of a talmid hakam be laid? — Two-thirds should be covered with a cloth and the other third should be uncovered for putting the dishes and vegetables on;¹⁷  and the ring¹⁸  should be outside.¹⁹  But has it not been taught that the ring should be inside?²⁰  — There is no contradiction. In one case [we suppose] there is a child at the table,²¹  and in the other that there is no child. Or if you like I can say [that in both cases [we suppose] there is no child, and still there is no contradiction: in one case [we suppose] there is a waiter at table²²  and in the other there is no waiter.²³  Or if you like I can say that in both cases [we suppose] there is a waiter, and still there is no contradiction; in the one case we refer to the day²⁴  and in the other to the night. The table of an 'am ha'arez²⁵  is like

1. Hence if he makes a partition and they do not object, this constitutes hazakah, but so long as there is no partition his using the courtyard constitutes no hazakah, though it would in the case of an outsider.
2. This shows that they are particular even about one another standing in the courtyard, for otherwise such standing could not be called a benefit derived from the other.
3. I.e., in the case of using the courtyard.
4. I.e., we assume that the other residents do not mind him putting his beasts etc. there, and since they do not mind, they do not formally object to his action, and therefore it does not constitute hazakah.
5. In the case of a vow.
6. We assume that the others do mind his standing in the courtyard. Hence if they allow him to do so, and he does, he would be deriving a benefit from them and so breaking his vow.
7. And therefore by rights the vow would not be broken by the act of standing in the courtyard.
8. If the man who has made the vow buys 100 nuts from the other, and he gives him one or two over, as to all customers, he may not accept them. Similarly, by standing in the courtyard the man who has made the vow receives a certain benefit from the other, even though the latter claims (as against him) no ownership in the courtyard.
9. As they would if they have to go down to the river to do so.
10. Isa. XXXIII, 15.
11. Because it is a duty to keep away from temptation.
12. Lit., 'to constrain himself'.
13. Having mentioned R. Bana'ah the text adduces a number of his sayings and doings.
14. Or 'shirt'.
15. I.e., a scholar. v. Glos.
16. I.e., it should come right down to his feet.
17. So that they should not dirty the cloth. According to some, the bare space was to be in the middle.
18. By which the table-top was hung up when not in use.
19. I.e., on the bare part.
20. I.e., the part near the guests.
21. And then it should be outside, because otherwise the child may play with it and upset the table.
22. And it should be inside, because if it is outside, it may get in his way.
23. And it should be outside, so as not to get in the way of the company.
24. When the waiter can avoid it, and therefore the convenience of the company can be consulted by having it outside.
25. V. Glos.