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Week 108 - Thursday - 20 December 2001

BAVA BATRA: CHAPTER 6: MISHNAH 7

One who has a public thoroughfare passing through his field, and he took it and gave them by the side - what he gave he gave, but his own he did not attain. A private path is four litra. A public thoroughfare is sixteen litra; the king's highway has no limit; the road to a grave has no limit; a halting place - the judges of Sephoris said, An area of four kabs.

Kehati

One who has a public thoroughfare passing through his field - whether this had been used from time immemorial as a public thoroughfare or whether the owner of the field had given this stretch for public use (Rashbam) he took it - if the owner of the field then took the thoroughfare for his own use and planted it, and gave them by the side - he set aside another path at the edge of his field, and the public became used to using this, what he gave he gave - The new road remains a public thoroughfare, for the public has gained the right to it, but his own he did not attain - the original public thoroughfare does not become his, and the public still has the right to use it. The Gemara explains the reason for this, for whenever the public has used private land for a length of time without the owner lodging a protest it cannot be deprived of that use in the future. And even though in this particular case the person granted the public an alternate path erroneously, as he believed that thereby he would be able to gain the use of the thoroughfare cutting through his property, the Sages penalized him for causing harm to the public, in that the new path that he set aside resulted in some people being inconvenienced. On the other hand, the fact that the public used the new path that the owner had allocated now gives it the perpetual right to that new path as well (Nimukei Yosef). A private path - If a person sells another a path through his field is four amot - he must give him a width of four litra. A public thoroughfare - If a person sold land to be used as a public thoroughfare, is sixteen amot - he must cede a width of sixteen litra, for whenever the Torah talks of a public thoroughfare it refers to this width, as we learn from the wagons which transported the Sanctuary in the desert (Shabbat 99a).

The king's highway has no limit - When a king breaks down a fence to build a highway, he may break down any width (San. 2:4). Some authorities explain that this law appears here incidentally (Rashbam). However, others explain that the mishnah refers to a case where a person sold a path to his fellow and told him, "I am selling you 'the king's highway" (Hameiri; and see Hil. Mekhirah 21:10); the road to a grave - the road used to bring the dead to burial, has no limit - In order to pay proper respect to the dead, the Sages did not make those accompanying the funeral force themselves to remain within the confines of the road, but permitted the procession to extend beyond both sides of the road. A halting place - if one sold an area to be used as a "halting place." At the time of the Gemara it was customary on the way back from the funeral to stop at such a place and to sit down and arise seven times before proceeding, where one of their number would exclaim, "Stand up dear ones, stand up," and "Sit down, dear ones, sit down." This became known as a "halting place." Another view is that this ceremony took place on the way to the burial (Rashi, Meg. 23b; Rambam). The judges of Sephoris said, An area of four kabs - This place must have an area large enough to sow four kabs, which means fifty litra in length by thirty three and a third litra in width.

BAVA BATRA: CHAPTER 6: MISHNAH 8

One who sells a place to his fellow to make him a grave, and so one who accepts from his fellow to make him a grave - makes the inside of the vault four litra by six, and he opens into it eight crypts: three on this side and three on this side and two opposite them. And the crypts, their length is to be four litra and their height seven and their width six. R. Shimon says, He makes the inside of the vault six litra by eight, and he opens into it thirteen crypts: four on this side and four on this side and three opposite them, and one to the right of the entrance and one to the left. And he makes a courtyard in front of the vault, six by six, the size of the bier and those burying it; and he opens into it two vaults, one on this side and one on this side. R. Shimon says: Four, on all four sides. Rabban Shimon b. Gamliel says: All is in accordance with the rock.

Kehati

At the time of the Mishnah, the custom was to dig family burial vaults. Each family would buy a place like a courtyard in stony ground and would then dig vaults in the ground of the courtyard. Inside each vault separate crypts were hollowed out, with the crypts open to the central vault. The coffins would be placed in these crypts, after which each crypt would be closed up with stones or plaster. This mishnah deals with the measurements of such a vault when the bill of sale does not specify the size.

One who sells a place to his fellow to make him a grave - to excavate a family vault, and so one who accepts from his fellow to make him a grave - if a person contracted to build a family vault for another, he makes the inside of the vault four amot by six - The Tosefta adds that the height is to be four litra, and he opens into it - into the vault, eight crypts - eight cavities into which coffins will be placed, three on this side and three on this side - three crypts to the left and three crypts to the right along the length of the vault, and two opposite them - and two more crypts in the wall opposite the entrance. And the crypts, their length is to be four amot - i.e., they are to be four litra deep and their height seven - tefahim, and their width six - tefahim, which are equivalent to an amah; this means that the six-litra length of the vault are divided as follows: three crypts of an amah each, with two spaces of an amah each between them, plus half an amah at each end. Opposite the entrance, the four litra would be divided as follows: two crypts of an amah each, a space of one amah between the two, and a half-amah at each end (Rashbam; Hameiri; and see Hil. Mekhirah 21:6, where Rambam has a different opinion as to the spaces between the crypts. Bartenura also explains along the lines of Rambam).

R. Shimon says, He makes the inside of the vault six amot - broad by eight - litra long, and he opens into it thirteen crypts: four on this side and four on this side - as the length is eight litra, there is room on each side for four crypts plus three spaces of an amah each, plus half an amah at each end, and three - crypts opposite them - in the wall opposite the entrance, for with a width of six litra there is room for three crypts and two spaces of an amah each, plus half an amah at each end, and one to the right of the entrance and one to the left - thus totaling thirteen crypts together. The Gemara explains that this does not mean that there were crypts on either side of the entrance to the vault, but rather that there was an extra crypt cut in diagonally at each corner of the wall opposite the entrance.

And he makes - The person who is constructing a family vault or who has contracted to construct one for a family, must also construct a courtyard in front of the vault, six by six - litra, the size of the bier and those burying it - so that the bier and the pallbearers will be able to fit into the area; and he opens into it – into this courtyard, two vaults, one on this side and one on this side - each as those described above, so that the courtyard opens into two vaults such as those described above, one on each side of the courtyard. R. Shimon says: Four - The courtyard opens into four vaults, on all four sides - of the courtyard. Rabban Shimon b. Gamliel says: All is in accordance with the rock - If the rock is hard, the contractor needs only to cut-in vaults of six by four litra, in accordance with the opinion of the First Tanna, whereas if the ground is soft, he must cut in vaults of eight by six litra, as R. Shimon holds, and the number of crypts will be commensurate in each case (Rashbam). The halakhah follows the First Tanna.

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