כ״ו בטבת ה׳תשע״ז (January 24, 2017)

Massekhet Bava Batra: Introduction to the Tractate

Tractate Bava Batra – “Last Gate” – is the third and final section of the original Massekhet Nezikin, the larger tractate that deals with financial matters.

Bava Batra differs from its predecessors, Massekhet Bava Kamma and Massekhet Bava Metzia, in two ways that are interconnected. While Bava Kamma and Bava Metzia dealt, on some level, with prohibitions, Bava Batra focuses solely on civil law. Parallel to this, the laws contained in the other two massekhtot were often based on sources in the Torah and on the interpretation of , while this massekhet is grounded in Rabbinic enactments whose sources are their understanding of human nature, on community agreements and on the need to establish boundaries and principles for business transactions in the Jewish community.

These principles are, of course, based on basic biblical principles that serve as the foundation for monetary matters:

  • Not to take something that belongs to someone else (Vayikra 19:11, 13);
  • The prohibition to trick or take advantage of another (Vayikra 19:11, 25:17);
  • The general concept of Rabbinic ordinances based on doing what is “right and good” (Devarim 6:18).

Nevertheless, these rules and regulations will not suffice to create a system of laws that will govern the civil and economic communities. This need encouraged the Sages to create a system whose details would allow for development of a healthy society.

Given that the focus of Massekhet Bava Batra is on monetary relationships, there is an intrinsic difference between the topics dealt with here and those that fall into the category of ritually forbidden matters. For example, one of the crucial powers of is the ability to establish laws as is deemed appropriate. Given that hefker beit din hefker – that Jewish courts can declare property ownerless – they can take away someone’s property or transfer it to the hands of another. A further example is the ability of the person who holds the property to transfer or relinquish the rights granted to him by Jewish law. Thus, the regulations that we find in this massekhet serve to establish principles of law when two parties are in disagreement. If they can come to an agreement that satisfies both parties, they can choose to ignore the law.

There are four basic topics covered in this tractate:

  1. Relationships between neighbors,
  2. Presumption of ownership and deeds,
  3. Sales, and
  4. Inheritance law.

Much of what is discussed relates to the general meaning of the term ḥazaka, which is interpreted in different ways. In its broadest sense, a ḥazaka is an assumption that is made about the nature of human behavior – how do people ordinarily deal with certain situations and how does an average person interpret and understand an agreement. Similarly with regard to sales – what do ordinary people mean when they enter into certain standard agreements? While well-written contracts may spell out every detail, the court must know how to handle cases where the agreement was not clearly stated.

Another issue that falls under the broad category of understanding the intention of the two parties is the question of gemirut da’at – final intention or making up of the mind of the parties to the transaction. Here the Gemara deals with questions like how to decide whether someone who is forced into an agreement actually means to accept its conditions, or if we have to throw it out entirely.

Since the rules and regulations governing these laws are not based on objective, biblical sources, there is more flexibility than we find in other areas of halakha, and we find that much is dependent on minhag ha-medina – the common practice in a given community. The idea that ha-kol ke-minhag ha-medina (everything is in accordance with regional custom) is an important principle, since the accepted community rule may have significance even if it was not codified in a formal manner. Similarly we find that there are many laws that are decided based on ha-kol lefi re-ot enei ha-dayyanim – the perspective taken by the judges hearing the case – who presumably take into account the subjective situation of the time, the community and the litigants.

The laws of inheritance that appear in Massekhet Bava Batra differ from the other topics here inasmuch as they are based on biblical passages, and are not dependent solely on the agreements of the parties who are bequeathing and inheriting. While there are methods of avoiding the strict requirements of the Torah (e.g. giving presents while still alive or making death bed requests) the basic principles of inheritance law cannot be changed. Nevertheless, there are certain Rabbinic laws – like the ketuba that guarantees support for a widow after her husband’s death – that must be considered. Some of the issues discussed try to iron out the differences between these laws.

Finally, Massekhet Bava Batra is the longest tractate in all of the Talmud Bavli. This stems not so much from the length of the discussions as much as from the switch from Rashi’s commentary on the side of the page – which is masterful in its precision and concise language – to that of his student and grandson, the Rashbam, whose lengthier interpretation straddles the approach of Rashi and the wider discussions found in Tosafot.

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