Bava Kamma 102

1:
We have mentioned on several occasions and in several contexts – including our study of this tractate – that it was common in the townships of Eretz-Israel for the houses to be arranged within the boundaries of the township, which may or may not have been walled. Around the perimeter of the township there was an open area for recreation and around the open area were allotments, sometimes called 'fields', in which the townsfolk would grow vegetables or fruit or livestock, according to their free choice. These 'fields' were usually separated one from another by a wall of uncemented stones and on the outer face of the wall the owner would set his mark. It often happened that the stones collapsed.

2:
Our present mishnah describes a situation in which someone has illegally taken possession of the field of another. The circumstances, of course, are immaterial to our discussion here, whatever they might have been.

3:
The Roman government in Eretz-Israel was quite ruthless. The basic principle was that whatever the government decided to do was, ipso facto, legal. Quite often the actions of government officials were legal even according to our modern conceptualizations. For example, if someone had not paid their taxes (which were more often than not quite ruinous) the government would send officials to confiscate some or all of their property. But on far too many occasions such confiscations were made for reasons which today we would not approve. If, for instance, the army needed to pave a road through someone's property they would just confiscate the property – without even recourse to compulsory purchase. Or perhaps a local official decided that he wanted a certain property for his own purposes. The hapless people had no redress. (This is because Eretz-Israel was just a remote 'provincia' of the Roman Empire in which a small minority only had the privilege of Roman citizenship. In Italy itself such arrant lawlessness was a much more rare occurrence, and citizens had redress.)

4:
Let's say that David had taken advantage of Sarah's prolonged absence from town to pull down the stone wall between her field and his and thus took possession of her field. The local governor, seeing a large field, decided that he wanted it for his own purposes and confiscates it from David. Upon her return, Sarah can sue David and he must make another field available to her (or reimburse her in some other acceptable way).

5:
However, if this governor confiscated many fields for his own purposes – if the confiscation of property in his area was a general problem, not a specific instance – then David does not have to make good Sarah's loss of her field. He can just shrug his shoulders and say, "There's your field!" In other words, "even if you had been in de facto possession of the field you would have lost it any way, together with the rest of us."

6:
This principle applies not only to confiscations. It also applies to natural catastrophes. The fields were usually near a river or stream for the purposes of irrigation. Each field would have a channel dug through which water from the nearby stream could be accessed. We often hear of droughts in Eretz-Israel; but sometimes there were also torrential downpours of rain, especially in the autumn: what the Torah calls the "former rains" as differentiated from the "latter rains" of early spring. The autumn rains are often torrential, causing considerable damage. (The Talmud of Eretz-Israel [Yoma 27a] tells us that on the Day of Atonement, the prayer of the High Priest included a plea that the homes of the people living in the Sharon area not become their tombs, so devastating could such rainstorms be.)

7:
If Sarah's field, in the illegal possession of David, is ruined by a devastating inundation from the nearby stream, swollen by the torrential rains, she has no recourse to recoup her losses. David can just shrug his shoulders and say, "There's your field!" What he means is that even if the field had still been in Sarah's possession it would have been devastated anyway. The field legally belonged to Sarah who suffers the consequences of the disaster.

In the discussion section in BK 101 we considered the problem of two people losing out because of theft or robbery. I wrote: "Both David and Sarah sustained a loss: I would imagine that the sages asked themselves why Sarah should have to sustain her loss rather than David sustain his?"

Amnon Ron'el wrote to me, hinting at another mishnah. Bava Metzia 1:1 reads:

I respond:

This is not at all the same situation! Here, both parties are claiming ownership and there is no way to determine who is the rightful owner; therefore they must share it by order of the court. However, in the case we were discussing in the previous mishnah there was no doubt as to who was the legal owner of the article. The problem was that both parties had suffered a loss: one had lost his stolen book which was now recovered; the other party had paid for the book which was now lost to her. There are no grounds for sharing the property as Amnon suggested.

We are approaching the end of our study of Tractate Bava Kamma. Please send me an email if you have a request or a suggestion as to which tractate we should study when we have completed our study of Bava Kamma.