The Evie B. Sitt Edition, an audio series on the Talmud Bavli, Masechet Bava Batra. This tractate, the longest tractate in the Talmud by page count, has been dedicated by our good friend and pioneering student of the daily Talmud study, Adam Azra, for the success of his dear children: that they should grow up to give him satisfaction, that they should have wisdom and understanding, and that they should be a source of pride to him, his wife, and his entire family. Amen.
We are beginning with the Mishnah near the bottom of page 100b. The Mishnah discusses a field through which there was a road designated for public use. The public already had the right to pass through that field, and that right had existed from the beginning. Therefore, the owner cannot take it away from them.
What did the owner do? He transferred the public road to another location. He took back the area through which the public had originally traveled and gave them a different road along the side of the field. The law is interesting: the new road that he gave them belongs to the public, but the original road does not return to him either. In other words, he loses both roads—the original road and the new road that he gave them. This is what the Mishnah means by, “What he gave them is theirs, and what he did not give them does not return to him.”
Regarding a private road, if a person gives an individual the right to pass through his field, the road must be four cubits wide. That is the measure of a road for an individual, corresponding to the space required for a person and his wagon. However, if he gives the public a passageway, he must provide them with at least sixteen cubits, the measure of a public domain with regard to the laws of Shabbat.
As for a royal road, there is no fixed measure. The king has something similar to eminent domain: he may enter another person’s field, break through the fence, and create a road wherever he needs to travel.
The same applies to a funeral procession. A funeral procession has no fixed measure. Even if there are large crowds and the people overflow into the fields on either side, the owners must allow them to pass. There is no prescribed width that limits the procession.
The Mishnah also mentions a formal gathering called a standing and sitting ceremony. This took place on the way back from the cemetery, after the deceased had been buried. There were seven stops along the way. The mourners and those accompanying them would stop, sit or stand, and deliver eulogies.
The judges of Sepphoris said that the area required for this gathering was four kav, approximately forty cubits by forty cubits. This provided room for a large number of people.
Let us now read the Mishnah. “If a public road passed through a person’s field, and the public had established the right to pass there from time immemorial, or if the owner of the field had established the public’s right to pass there from time immemorial, what he gave them is theirs, and what he did not give them does not return to him.” The Mishnah concludes that the owner is left with two roads: the old road and the new road. I will explain this further.
With regard to a private road, if a person sells an individual the right to pass through his field, he must give him four cubits, the width required for a person with a wagon. The measure of a public road is sixteen cubits. As for a royal road, there is no fixed measure, because the king may break through fences and even houses in order to make a road for himself, and no one may prevent him.
The same applies to a funeral procession. Many people must be able to attend the funeral. The Talmud gives an example of an exceptionally large funeral procession. This does not mean that a funeral has the same status as the king. The king may break down houses in order to travel, whereas a funeral procession may overflow into another person’s field only without causing damage to the property.
They may walk over another person’s wheat or similar crops when necessary for the procession, but they may not cause financial damage. The Rashbam explains that the people may pass through the property, but they must do so without damaging it.
We now begin the Gemara. In the first case of the Mishnah, the public already had the right to pass through the field. The owner wanted to transfer the road and give them another one. The Mishnah says that both roads ultimately belong to the public.
The Gemara asks: Why does the Mishnah have to tell us that the original road does not return to the owner? The owner gave the public a new road, so why can he not retain the original road? Let him sit there with a hammer, a stick, or some other implement and prevent anyone from using it. The public is not losing anything; they have received a new road. Why should the owner not be allowed to take back the original road and stop people from walking there?
He cannot bring every person to court. Therefore, the Gemara asks, let him sit on the road with a stick and enforce the matter himself. The public is receiving an alternative passageway, while the owner is suffering a financial loss because people continue trampling his field. Why can he not recover that area?
The Gemara is teaching an important principle: one may not take the law into one’s own hands even when failing to do so will cause a financial loss. The owner cannot say, “What do you mean? It is my field. I gave them another passageway. I will sit there with a stick and strike anyone who tries to use the old road.” He may not do that.
Actually, the Gemara’s question must be read more precisely. It is asking: Are you saying that a person may not take the law into his own hands even where doing so would prevent a financial loss? We know that everyone agrees that in such a case he may do so. There is a dispute in another tractate as to whether a person may generally take the law into his own hands. For example, if someone steals money from you, may you simply take it back from him? Or must you bring him to court? That is a dispute. But everyone agrees that when failing to act will cause a financial loss, one may take the law into one’s own hands.
In this case, if the owner does not sit there with a stick, the public will trample his field and destroy his wheat. So why can he not take the road back? That is the Gemara’s question.
The answer is that the Sages did not want people to transfer a public road. Why not? Because the owner might act deceptively. He might give the public another road along the side of the field, but make it crooked or inconvenient, rather than giving them a road as useful as the original one.
Therefore, the Sages said that if the owner transfers the road, he loses both roads. This is almost a penalty. The public should not be accustomed to walking along the convenient road in the middle of the field, only for the owner to reclaim that road and send them to an inferior route on the side. We are concerned that the owner will try to benefit himself by taking back the nicer road and giving the public a less convenient one. The Sages therefore said, “No. We do not want you to do that. If you do it, you lose both sections.”
The Rashbam explains that, generally speaking, a person may take the law into his own hands even when a financial loss is involved. However, the Mishnah is not saying that the owner has no practical way to prevent people from using the original road. Rather, it is saying that the road no longer belongs to him. He forfeited it. Even if he gave the public a straight road comparable to the original one, he may not switch the roads. There are no exceptions in this case.
There is also a practical concern. Once the public has been given a crooked road, it may not bring the owner to court, because each individual relies on everyone else to do so. When people rely on one another, no one takes action. It is like a pot belonging to two partners: it is never hot and never cold, because each partner assumes that the other will heat it. The public may end up suffering because no one will act on behalf of everyone else.
Therefore, the Sages said that the owner may not transfer the public road. If he does, he loses the original road as well as the new one. The Sages are always concerned with the welfare of the public.
This is the Gemara’s first answer: once the owner transfers the road, he loses the road that he gave the public, and he also loses the original road.
The Gemara then presents another opinion. According to this view, the owner loses the original road only if the replacement road that he gave the public was crooked. If he gave them a straight road, he may reclaim the original one. The first opinion says that the owner may not transfer the road under any circumstances; if he transfers it, he loses both roads. The second opinion says that only when he gives them a crooked road do they retain the new road and also keep the original road.
The Gemara then asks: If he gave them a straight road, let him sit on the original road with a stick and prevent people from using it. The answer is that the Mishnah is discussing a case in which he gave them a crooked road. Since he gave them an inferior road, there is no practical option for him to return to the original arrangement. The public retains the original road as well.
This creates a distinction between the first two answers. According to the first answer, regardless of the type of road he gives them, he loses both roads. According to the second answer, he loses both only when he gives them a crooked road. If he gives them a straight road, he may protect his position regarding the original road by sitting there and preventing people from using it.
The Gemara continues with another explanation. Any road that the owner gives the public may be considered a crooked road. Even if he gives them a straight road, it will necessarily be closer to some people and farther from others. The original public road had already been established in its location. Once the owner moves it, he affects someone, because the replacement road will be farther away from certain people than the original road was.
According to this explanation, it does not matter whether the replacement road is physically straight or crooked. Any road given in a new location is considered inferior because moving the public road necessarily changes the access of some members of the public. Therefore, in every case, the owner loses the original road as well. He has no right to take the public’s original road away from them.
The Gemara now raises another question. Why can the owner not say, “Let us undo the entire transaction? I will take back the new road that I gave you, and you will return the original road to me.” Why does he lose both roads? He gave the public a new road, and the Mishnah says that the new road belongs to them. Why can he not say that he made a mistake and that they should return the new road, after which the original arrangement will be restored?
The Gemara’s answer follows the view of Rabbi Eliezer, who says that when the public chooses a road for themselves, whatever they establish becomes theirs. Even if the public entered a person’s field without permission and began using a particular route, once they established that route, it belongs to them.
This is an extraordinary concept. The Gemara asks: What do you mean? Is the public simply a group of thieves? Can people enter someone’s field without permission and acquire a road by beginning to use it? We cannot accept such a conclusion.
Rav Giddal said in the name of Rav that Rabbi Eliezer is referring to a case in which the public already had a road through that field, but the road was lost. The people forgot where it was. In that situation, the public may establish a new road without asking the owner of the field. This is different from the case of an individual who loses his right of passage; an individual must bring the matter before a court. The public, however, may establish a new road because they previously had a road in that field.
In our Mishnah, the owner certainly gave the public a passageway through the field. The new road that he gave them therefore belongs to them, because they had a right of passage in the field and he moved it. What about the original road? That road also does not return to him. Once he took it away from the public, we impose a penalty on him, because we are concerned that he might otherwise give them a crooked road. Thus, he loses both roads.
The Gemara then asks why Rav Bar Chanah said elsewhere that the law does not follow Rabbi Eliezer. This Mishnah appears to follow Rabbi Eliezer, because it says that the owner loses both roads. The new road belongs to the public because they chose it and established it for themselves, while the owner loses the old road as a penalty. If so, why should the practical law not follow Rabbi Eliezer?
The Gemara answers that the person who said that the law does not follow Rabbi Eliezer did not interpret the Mishnah in this manner. He had a different interpretation of the Mishnah. If one learns the Mishnah as we have explained it—that the new road becomes public property because the public establishes it for itself—then the law would indeed follow Rabbi Eliezer. The authority who said that the law does not follow Rabbi Eliezer must therefore have understood the Mishnah differently.
What is that different interpretation? The Mishnah may be understood as referring to a case in which the public had already established a road and had paved it. The owner knew what they were doing and remained silent. Because he allowed them to pave the road and use it, he can no longer destroy it. He must have waived his rights regarding that road.
The Rashbam explains that the public themselves paved the road and prepared it for use, while the owner knew what they were doing. Since he remained silent, he may no longer come later and say, “I am taking it back.” Once he gave them the new section, they paved it, and he remained silent, he waived his rights regarding it. As for the original road, he loses it because of the penalty imposed upon him, since he may otherwise give the public a crooked road.
According to this interpretation, the Mishnah can be understood according to Rabbi Eliezer. The public acquired the new road through the improvements they made to it, while the owner loses the original road as a penalty.
The Gemara now raises an important question. There is no difficulty with the interpretation that the public acquired the new road because they paved it and improved it. That is an ordinary form of acquisition. But Rabbi Eliezer’s position is that once the owner gives the public a road, the road becomes theirs simply because they use it. What form of acquisition took place? In order to acquire property, some act of acquisition is generally required. Where was the act of acquisition here?
The Gemara answers that the act of acquisition was walking on the road. There is a form of acquisition through walking. This is a new method of acquisition that we have not yet encountered: when a person walks over land, the walking itself may acquire it.
The Gemara cites a teaching: If a person walks through a field along its length and width, the area over which he walks is acquired by him. This is not one of the ordinary forms of acquisition, such as making an improvement to the land or building something on it. Rather, it is acquisition through walking.
From where is this form of acquisition derived? It is derived from what God told Abraham: “Walk through the land.” Abraham was told to walk through the Land of Israel, and walking through it served as a form of acquisition. Thus, there is a new form of acquisition called acquisition through walking, which we learn from Abraham.
The Sages, however, say that the command to Abraham to walk through the land was not intended to establish a legal acquisition. It was an expression of God’s love for Abraham and was meant to make it easier for his descendants to conquer the land. By walking through the land, Abraham established a claim so that people would not later say, “What claim does Abraham have to this land?” His walking demonstrated a connection to the land, almost as though it had been given to him as a gift, but it was not an acquisition in the formal legal sense.
That is the dispute: whether walking constitutes an acquisition or whether it does not. The Sages do agree, however, that in certain situations walking on land can establish possession. If a person wants to acquire a vineyard and there is a path through the vineyard, walking along that path may constitute an acquisition. The reason is that walking along the path is the ordinary way in which the vineyard is used. In that exceptional case, where the road passes through a vineyard, walking along it is a normal use of the property and can therefore serve as an acquisition.
This is similar to the principle that when a person derives benefit from land, that use may establish possession. For example, when a person places pillows on land and lies on them, the land has provided him with a benefit. Similarly, when someone walks through a field in a way that constitutes its ordinary use, the field is serving him, and that use may establish acquisition or possession.
Rav Yosef related that when people came before him with a case involving a person who gave his friend a right of passage through a vineyard without specifying the width of the road, the proper measure was the width needed for a person carrying a load of grapes. He must be able to turn without striking the vines or the walls on either side. The road must therefore be wide enough for him to turn while carrying a load on his shoulder, even if branches or other objects extend outward.
The Gemara qualifies this. That measure is necessary when there are walls or other barriers on the sides that the person might strike while turning. If there are no walls, he does not need a road that wide. In that case, he must be given only enough room to walk normally—to place one foot down and then the other. The wider measure is needed only because of the obstacles on the sides.
Returning to the Mishnah, when a person gives an individual the right to pass through his field, what is the required measure? The Mishnah gives four cubits. The first explanation is that four cubits is the width required for a wagon, since people generally traveled with wagons.
Some authorities say that the measure is smaller. They require only enough space for a person to travel with his donkey. The judges of the Exile established the measure for an individual’s road as two and a half cubits of the measure called a gomed. A gomed is measured from the elbow to the tip of the fingers. Two and a half such measures are less than four cubits.
Rav Huna said that the law follows the judges of the Exile, meaning that the required width is two and a half gomeds. The Gemara asks: Rav Huna also said that the law follows the other authorities, who require the measure of a road for a donkey. Which measure is correct—two and a half gomeds or the width required for a donkey?
The answer is that they are the same measure. The width required for a donkey is two and a half gomeds. Thus, there is no contradiction between Rav Huna’s two statements.
When the public is given the right to pass through a field, the required width is sixteen cubits. When a private road connects two cities, however, the road must be eight cubits wide. Since traffic may come from both directions, there must be four cubits for a person traveling from one city and another four cubits for a person traveling from the other city. It is therefore a two-way road.
The roads leading to the cities of refuge must be even wider—thirty-two cubits. Many people may be fleeing there, and the courts must ensure that the roads are sufficiently wide and accessible. People may come from all directions, so the road must accommodate traffic from every side. The Gemara derives this by doubling the measure of sixteen cubits, based on the wording of the verse, “Prepare the way for you”—a way, a way.
We also said that a royal road has no fixed measure. The king may break through another person’s fence in order to make a road for himself, and no one may prevent him. The king may break through the fences of others to create a path wherever he needs to travel.
The same principle applies to a funeral procession. There is no fixed limit to the number of people who may participate or to the width of the area they may occupy. One cannot tell people to leave a funeral procession. Therefore, if necessary, the procession may overflow into another person’s field, provided that it does not cause damage.
We now return to the standing and sitting ceremony. There were seven stops on the way back from the cemetery. The people would sit, stand, and deliver eulogies. This was a specific ceremony.
The Mishnah says that the required area for the ceremony was forty cubits. Suppose a person sold his family burial plot to someone else. Or suppose he sold the place where the funeral procession customarily passed, or the place where the family customarily delivered eulogies. The family members may nevertheless bury their relative there against the will of the purchaser.
The reason is that it would be a disgrace for the family if its member were not buried in the family plot. People would say, “What happened to him? Why was he not buried in the family plot?” The Sages therefore instituted a legal remedy: they take the property away from the buyer, but they require the family to compensate him.
The Rashbam explains that it is a disgrace for the family when one of its members has no place to be buried. The family may therefore take the property back, but it must pay the purchaser for it.
When returning from the cemetery, the participants make seven standing and sitting stops with eulogies. There must be at least seven. When the Book of Ecclesiastes discusses the vanities of this world, it says the word “vanity” seven times. Since there are seven expressions of vanity, there are seven standing and sitting ceremonies.
The Rashbam offers an additional explanation. When the people return from the cemetery, they sit and console the mourners, cry, and reflect on the fact that human life is fleeting. They stand and walk a little farther, then sit again and repeat the process, reminding themselves that the physical life of a human being is temporary.
The Rashbam also mentions an interesting reason that he rejects as the explanation for the practice. Some said that when people return from the cemetery, harmful spirits attach themselves to them, and the seven procedures drive those spirits away. The Rashbam says that such a fact may possibly be true, but it is not the reason for the standing and sitting ceremonies.
What was the custom in Judea? Initially, they performed seven such procedures. When they reached a designated place, everyone sat, and the person in charge would say, “Precious ones, stand up,” meaning that they should continue walking. At the next place he would say, “Precious ones, sit down.” That was the procedure.
If that was the entire procedure, the Gemara asks, why was it not performed on Shabbat? Suppose someone died shortly before Shabbat and was buried immediately before Shabbat began. On the way home, the people would merely stand and sit. They would not be doing anything that is inherently prohibited on Shabbat. Based on this description, it should have been permissible to perform the ceremony on Shabbat. Why was it not done?
The Gemara answers with a story. Rabbi Yehuda was the one who explained the procedure to the Gemara, so the question is based specifically on his description. According to his explanation, the ceremony appears to consist only of standing, sitting, and crying, and therefore it should be permissible on Shabbat. The other sage did not explain the procedure in the same way. According to his view, the ceremony may have involved something else, and therefore the question cannot be raised from his explanation.
The Gemara relates another story. The sister of Rami bar Pappa was married to Rav Avya, and she passed away. Rav Avya performed the standing and sitting ceremony for her on the way back from the cemetery.
Rav Yosef said that Rami bar Pappa made two mistakes. First, the people involved in this ceremony should be relatives who are not themselves part of the mourning process. He also included outsiders. That was his first mistake.
Second, the ceremony is performed only on the first day, immediately after the burial. It is not performed on the following day. He performed it on the second day, which was another mistake.
There was also a third mistake, as Abaye explained: the ceremony should be performed in the cemetery or near the cemetery, but he performed it in the city. There was a fourth mistake as well: the ceremony is performed only in a place where that is the local custom. If it is not the custom to perform it in a particular place, or if there is no established custom there, it should not be done.
The Gemara then asks: Earlier, Rabbi Yehuda explained that the procedure consisted of standing and sitting. According to that description, it should even have been possible to perform it on Shabbat. Yet Abaye’s statement indicates that it was performed in the cemetery or near the cemetery. How could the Gemara previously have considered performing it on Shabbat? Going to the cemetery would normally involve traveling beyond the city limits.
The Gemara answers that the earlier case involved a city located close to the cemetery. The cemetery was not beyond the permitted Shabbat distance. It must have been a case in which the person died on Friday and was buried immediately before sunset. The burial was completed just before Shabbat began, and the people were returning from a cemetery that was close to the city. According to Rabbi Yehuda’s description, they merely stood, sat, and cried a little, so there was no problem with the ceremony itself on Shabbat.
Returning to the story, the Gemara calculates four mistakes. The ceremony should have involved only relatives who were not themselves mourners, but outsiders were included. It should have been performed only on the first day, but it was performed on the second day. It should have been performed in or near the cemetery, but it was performed in the city. Finally, it should have been performed only in a place where it was the established custom to do so.
Amen.