Bava Batra 13: Splitting Up

By: Rabbi Jay Kelman |

The opening Mishna of Bava Batra teaches that in the interest of privacy, one neighbour can force the other to build a wall dividing their common property. However, not everything is fit to be divided. The Mishna (Bava Batra 11a) lists the various minimum areas needed to force a division of property so that each will have enough room to effectively use the divided space. For a courtyard, the minimum area needed for each is four square amot, approximately 6 by 6 feet; nine kavim, approximately 7,500 square feet, are needed for a field; half a kav, approximately 420 square feet, would allow sufficient room for a garden, etc.

Of course, there is no reason to prevent neighbours from dividing smaller areas if they so choose. It is what happens if they choose not to divide such a small area that is the subject of dispute.

If neither is interested in buying out the other, Plan A – at least according to the Rambam – would be to rent the property and split the proceeds. If it’s necessary to go to Plan B, each would take turns using the property. The length of time each neighbour could use the property would depend on what type of property is under discussion. In the case of a courtyard, each would take turns using it for a full year! This, the Rambam explains (Hilchot Shechenim, Laws of Neighbours 1:2), is because cleaning a courtyard is a big hassle and people do not do so every 30 days. At the other extreme would be a bathhouse where each could use it every day, as one has no right to tell someone else they can't use a bathhouse on any given day.

But what if one of the neighbours finds these sharing agreements burdensome, arguing that at these small sizes, some things are not meant to be shared? Rabbi Yehuda (Bava Batra 13a) argues that in such a situation, we employ gud or agud, what is known today as a shotgun agreement, where one neighbour can say to the other, “Here is my price; either sell it to me at that price or purchase it from me at that price.”

The Tosafists (s.v. eet) quote a fascinating dispute regarding gud or agud, one that we might say pits those with a more capitalistic bent against more socialist views. The Ri, reflecting a free market approach, claims that Reuven (who wants to end the partnership) can quote whatever price he wants, and Shimon can either accept the offer or buy out Reuven at that price. However, the Ritzva argues that such is unfair, as a wealthy person will always be able to buy out his less-wealthy neighbour by paying more than market value. Thus, he argues, gud or agud only works in a situation where the market price is all that can be offered and subsequently either accepted or refused. 

Even the approach of the Ritzva is too much for some. Rav Nachman rejects the shotgun approach altogether, arguing that one cannot be forced to sell to or buy out his neighbour. Rather, he suggests, they should take turns using it as described above.

Here too we have a philosophical debate, with Rav Yehuda arguing that economic efficiency allows one to demand that only one person own the property. If they both agree otherwise, fine; but if not, one can force the other out—one way or another. Rav Nachman argues that economic efficiency or not, one cannot be forced to give up his property or buy someone else’s. One has a right to act as they see fit with their own property, even if better use can be made of the field. 

As we have seen many times before in our study of Talmud, commercial and religious life are intertwined. The Mishna (11a) continues, saying that some things can never be split.  “And Holy Scriptures, even if they both agree, cannot be divided.” [1] To do so would demonstrate a lack of respect for the integrity of the Biblical text. The Sages went so far as to insist that each of the 19 books of Neviim and Ketuvim be written on a separate scroll, reflecting the independent nature of each book. While the Torah may consist of the Five Books of Moses, it is a unified whole, with the sanctity of each book dependent on the other. That is why a mistake in any book invalidates them all. 

Interestingly, Rav Meir allows, perhaps insists, that all 24 books be written in one scroll, seeing the entire Tanach as one book with 24 sections. The Gemara notes that such a scroll containing all of Tanach was brought before Rebbe Yehuda Hanasi, who allowed it be used for the public Torah reading, in essence blurring the distinction between Torah, Neviim and Ketuvim. It is Rav Yehuda who insists that a tri-part distinction must be maintained and the Tanach must be in three separate scrolls.

How beautiful that a discussion about dividing fields segues into the writing of a sefer Torah! The discussion continues with many more specifics on the writing of a Torah, and a fascinating discussion regarding who authored what parts of Tanach. Please G-d, we will discuss such in our next post.

 

[1] Unlike today where we have printed texts of Torah, in the days of the Mishna, the 24 books of the Torah were written on parchment. Just as the Oral Law was not allowed to be put into writing, the Written Law, i.e., the Tanach was not allowed to be expressed orally. One had to read the Bible from a text, and only parchment qualified as such. Reading from a piece of paper was considered to be an oral presentation – presumably because such a reading would not fulfill the mitzva of public Torah reading. To this day there are communities where the Haftarah is read from a parchment (which has no notes) – which has the side benefit of forcing people to prepare the reading of the Haftarah in advance. While less common, there are those who will not cite a biblical verse by heart, though to the best of my knowledge, they will read from a printed text.