13. If a man lent aught to his fellow4 he may only exact a pledge from him with the consent of the court, and he may not enter his house to take his pledge, for it is written, Thou shalt stand without.s If the debtor had two utensils6 the creditor may take one but must leave7 the other; and he must give back a pillow during the night-time and a plough during the day-time; but if the debtor dies the creditor need not restore [the pledge]8 to his heirs. Rabban Simeon b. Gamaliel says: Even to the debtor himself he need only return the pledge during a space of thirty days; and after thirty days he may sell it with the consent of the court. A pledge may not be exacted from a widow whether she is poor or rich, as it is written, Thou shalt not take the widow's raiment in pledge. 9 If a man takes away the mill-stones, he transgresses a negative commandment, and he is also culpable by virtue of taking two utensils together, for it is written. No man shall take the mill and the upper millstone to pledge.10 They spoke not onlv of the mill and the upper millstone, but of aught wherewith is prepared necessary' food, as it is written, For he taketh a man's life to pledge.1- 10. 1. If a house and an upper room belonging to two persons12 fell down, the two share in the wood and the stones and the earth;u and they consider 1 which stones were the more likely to have been broken.14 If one of them recognizes some of the stones that were his, he may take them and they form part of his share in the reckoning.
2. If there was a house and an upper room belonging to two persons15 and the [floor of the] upper room was in part broken down, and the owner of the house below was not minded to mend it, he that occupies the upper | room may come down and dwell below until the owner shall mend for him the [floor of the] upper room. R. Jose says: He that dwells below should provide the beams and he that dwells above the plastering.
3. If a house and an upper room belonging to two persons16 fell down, and the owner of the upper room told the owner of the house below to rebuild it, and he was not minded to rebuild it, the owner of the upper room may rebuild the house below and live in it until the other repays him what he has spent. R. Judah says: He would then 17 have been dwelling with¬ in his fellow’s domain and should pay him rent!18 — but, rather, the owner of the upper room should rebuild both the house below and the upper 3 Since the law in that same verse (Lev. 19“) speaks of ‘thy neighbour', i.e. a fellow- Israelite.
* For a specified time, and he was not repaid at the end of the time.
6 Which sufficed as security for the debt, but the debtor had need of one of them.
7 Variant: ‘Give back’. * The pillow or plough at the times prescribed.
17 i.e. the mortar and mud which filled in the masonry’.
14 As suggested by the ruins and the manner of the collapse. If, e.g., the stones of the lower story were more likely to have suffered breakage the owner of the lower story must include these in his share when making the division.
15 The upper story being rented from the occupant of the lower story.
16 Each owning one. 17 After being reimbursed.
** Since he profited from the lower story, not having his upper story to live in.
room and put a roof on the upper room and live in the house below until the other repays him what he has spent.1 4. So, too, if an olive-press that is built in a rock has a garden [on its roof] above it, and this was in part broken down, the owner of the garden may come down and sow below until the other rebuilds the vaulting of his olive-press. If a wall or a tree fell into the public domain and caused damage, the owner is not liable to make restitution. But if a set time had been given him by which to cut down the tree or pull down the wall, and they fell down within the time, he is not liable; but if after that time, he is liable.
5. If a man’s wall was near his fellow’s garden and it fell down and his fellow said to him, ‘Clear away thy stones’, and he answered, ‘They are become thine’, they do not listen to him. But if after the other had accepted the offer he said to him, ‘Here is what thou hast spent and I will take away what is mine', they do not listen to him. If a man hired a labourer to help him in his work with the chopped straw and stubble, and the labourer said to him. ‘Give me my hire’, but the other said, ‘Take as thy hire that where¬ with thou hast laboured’, they do not listen to him. But if after the other had accepted [his hire in kind], he said, ‘Here is thy hire, and I will take what is mine’, they do not listen to him. If a man would cast out manure [from the courtyard] in the public domain, while the one casts it out another must take it away to manure [his field]. None may soak clay or make bricks in the public domain, yet clay may be kneaded2 in the public domain, but not bricks.3 If a man builds in the public domain, so soon as the stones are brought they must be used in the building; and if he causes any damage he must make restitution for the damage that he has caused. Rabban Simeon b. Gamaliel says: He may, indeed, make preparation for his work for thirty days [in the public domain].
6. If there were two gardens [in terraces] one above the other and vegetables grew between them, R. Meir says: They belong to the upper garden. R. Judah says: To the lower garden. R. Meir said: If [the owner of] the upper garden was minded to remove his soil there would be no vegetables. R. Judah said: If [the owner of] the lower garden was minded to fill up his garden [with soil] there would be no vegetables. R. Meir said: Since each is able to thwart the other, we should consider whence these vegetables derive their life.4 R. Simeon said: Whatsoever [the owner of] the upper garden can take by stretching out his hand belongs to him, and the rest belongs to [the owner of] the lower garden.
I. 1. If two jointholders would make a partition in a courtyard they should build the wall in the middle. Where the custom is to build of unshaped stones, or of hewn stones, or of half-bricks, or of whole bricks, so they should build it: everything should follow local use. If the wall is of unshaped stones each supplies [a thickness of] three handbreadths; if of hewn stones each supplies two handbreadths and a half; if of half-bricks each supplies two handbreadths; and if of whole bricks each supplies a 1 The lower occupant could not then claim rent from the other, since the other had now his upper room at his own disposal.
2 For immediate use in a building. J Since labour on them is more protracted.
* Whether from the one’s soil or the other's airspace.
366 FOURTH DIVISION: NEZIKIN handbreadth and a half. Hence if the wall fell down the place [on which it stood] and the stones belong to them both.
2. So, too, with [jointholders of] a garden: where the custom is to build a fence [between each holding] a man is bound to do so; but in the valley, where it is not the custom to build a fence, none is bound to do so; but if one [of the jointholders] would build [a fence] he must withdraw within his own portion and there build [his fence] and make the boundary mark outside it; hence if the wall fell down both the place and the stones belong to him. If they acted with each other’s consent, they should build the wall in the middle and make the boundary mark on either side; hence if the wall fell down the place and the stones belong to them both.
3. If a man’s land surrounded his fellow’s land on three sides, and he fenced it on the first and the second and the third sides, the other is not bound [to share in building these walls]. R. Jose says: If the other rose up and fenced it on the fourth side he is compelled to bear his share in the cost of all the other walls.1 4. If the wall of a courtyard fell down each of the jointholders is bound to help in building it up to a height of four cubits, and each may be presumed to have paid [his share] unless the other brings proof that he has not paid. If [the other built it to a height of] four cubits he is not bound to help in building it, but if he afterward built another wall over against it,2 even if he did not put a roof thereon, he is compelled to bear his share in the cost of the whole of the other wall; and he cannot be presumed to have paid [his share] unless he brings proof that he has paid it.
5. Every one [that dwells within a courtyard] is compelled to share in building a gate-house and a door for the courtyard. Rabban Simeon b. Gamaliel says: Not all courtyards are such that need a gate-house. Every one [that dwells within a town] is compelled to share in building a wall for the town and double doors and a bolt. Rabban Simeon b. Gamaliel says: Not every town is such that it needs a wall. How long must a man be in a town to count as one of the men of the town? Twelve months. If he has acquired a habitation therein he forthwith counts as one of the men of the town.
6. A courtyard may not be divided unless it will allow four cubits [by four cubits] to each [occupant]; nor [may] a field [be divided] unless there is nine kabs' space of ground3 to each [jointholder] (R. Judah says: Unless there are nine half-£<zfa’ space of ground to each); nor a garden unless there is a half -kabs' space of ground to each (R. Akiba says: A quarter- kab's space); nor an eating-hall,4 a watch-tower, a dovecot, a cloak, a bath¬ house, or an olive-press unless there is a portion sufficient for each joint- holder. This is the general rule: whatsoever when divided can still be called by the same name, may be divided; otherwise it may not be divided. This applies if either of the jointholders is not willing [to divide their joint property]; but if both are willing they may divide it even if it is yet smaller. But the Sacred Books may not be divided even if both are willing.
2. 1. None may dig a cistern near his fellow’s cistern; nor may he dig a trench, vault, water-channel, or washerman’s pool unless it is three hand- 1 From which he now profits, since they provide three-quarters of the fencing of his land.
2 Thus making the courtyard wall one wall of an enclosure of which he has the whole breadths away from his fellow’s wall;1 and he must plaster it with lime. Piles of olives-refuse, manure, salt, lime, or stones may not be kept within three handbreadths of his fellow’s wall and2 he must plaster it with lime. Seeds or a plough or urine may not be kept within three handbreadths of the wall. The hand-mill may not be kept at such a distance that the wall is less than three handbreadths from the lower mill-stone3 or four from the upper mill-stone; and an oven may not be kept at such a distance that the wall is less than three handbreadths from the belly of the oven or four from the rim.
2. None may set up an oven within a house unless there is a space of four cubits above it.4 If he sets it up in an upper room the flooring beneath it must be three handbreadths deep or, for a stove,5 one hand- breadth; and if it causes damage [to the floor] he must pay for the damage that is caused. R. Simeon says: They have prescribed these measurements only that, if damage ensues, he shall not be liable to make restitution.
3. None may open a baker’s shop or a dyer’s shop under his fellow’s storehouse, nor [may he keep] a cattle-stall [near by]. They have, indeed, permitted these under a winestore,6 but [they have] not [permitted] a cattle-stall.7 A man may protest against [another that opens] a shop within the courtyard and say to him, ‘I cannot sleep because of the noise of them that go in and out’. He that makes utensils should go outside and sell them in the market. But none may protest against another and say, ‘I cannot sleep because of the noise of the hammer’ or ‘because of the noise of the mill-stones’ or ‘because of the noise of the children’.
4. If one man’s wall adjoins his fellow’s wall8 he may not build another wall adjoining9 it unless it is at a distance of four cubits;10 [and if he builds a wall opposite his fellow’s] windows, whether it is higher or lower than them or level with them, it may not be within four cubits.11 5. A man’s ladder must not be kept within four cubits of [his neigh¬ bour’s] dovecot, lest the marten should jump in. His wall may not be built within four cubits from [his neighbour’s] roof-gutter, so that the other can set up his ladder [to clean it out]. A dovecot may not be kept within fifty cubits of a town, and none may build a dovecot in his own domain unless his ground extends fifty cubits in every direction. R. Judah says: Four kors’ space of ground, which is the length12 of a pigeon’s flight. But if he had bought it [and it was built already in that place] and there was only a quarter-&i£>V space13 of ground, his right to maintain it may not be disputed.
6. If a young pigeon is found within the fifty cubits it belongs to the owner of the dovecot; but if beyond the fifty cubits it belongs to him that finds it. If it is found between two dovecots and is nearer this one, it 1 i.e. the wall of his fellow's cistern, the dividing wall between the two cavities.
1 Variant: 'or'.
* The lower, convex, millstone is broader but fixed to the earth; the upper, concave, stone is smaller but freely movable. 4 To prevent burning the roof-beams.
5 Which does not require so hot a fire as the oven.
6 Since the wine of Palestine is improved by heat.
7 Whose stench spoils the wine. * At right angles.
9 So as to make an enclosure, walled in on three sides.
10 Sufficient for a footway.
11 If higher, it must be four cubits higher, for privacy’s sake; if lower, it must be four cubits lower, so as not to interfere with the other’s light; and if opposite (or level), it must be four cubits away so as to ensure light to the other.
11 Four km's space is 300,000 sq. cubits (see App. II, E), a square with sides 548 cubits; i.e. the pigeon’s flight is estimated at 274 cubits.
11 Little more than a hundred sq. cubits.
368 FOURTH DIVISION: NEZIKIN belongs to him [that owns this dovecot], and if nearer to the other, it belongs to him [that owns the other]; and if it is at a like distance from either, they share it.
7. A tree may not be grown within a distance of twenty-five cubits from the town, or fifty cubits if it is a carob or a sycamore-tree. Abba Saul says: Any tree that bears no fruit may not be grown within a distance of fifteen cubits. If the town was there first the tree shall be cut down and no compensation given; if the tree was there first it shall be cut down and compensation given. If it is in doubt which was there first, the tree shall be cut down and no compensation given.
8. A permanent threshing-floor may not be made within fifty cubits from the city. None may make a permanent threshing-floor within his own domain unless his ground extends fifty cubits in every direction; and :t must be far enough away from the plantations and ploughed land of his fellow for it to cause no damage.1 9. Carcases, graves, and tanneries may not remain within a space of fifty cubits from the town. A tannery may be set up only on the east side of the town. 1 R. Akiba says: It may be set up on any side save the west but3 it may not be within a distance of fifty cubits.
10. A pool for steeping flax may not be kept near to vegetables, nor leeks near to onions, nor mustard-plant near to bees. R. Jose permits mustard- plant.
11. A tree may not be grown within twenty-five cubits of a cistern, or within fifty cubits if it is a carob or a sycamore-tree, whether it is higher up or on the same level. If the cistern was there first the tree shall be cut down and compensation given; if the tree was there first it shall not be cut down; if it is in doubt which was there first, the tree shall not be cut down. R. Jose says: Even if the cistern was there before the tree it should not be cut down, since the one digged within his own domain and the other 1 planted within his own domain.
12. A man may not plant a tree near another’s field unless it is four cubits away, no matter whether it be a vine or any other tree. If there was a wall between, each may plant up to the wall on either side. If its roots entered within the other’s domain, the other may cut them away to a depth of three handbreadths so that they shall not hinder the plough. If he digged a cistern, trench, or vault, he may cut them away as far down as he digs, and the wood shall belong to him.
13. If a tree stretches into another’s field, he may cut it away as far as is reached by an ox -goad held over the plough, or, if it is a carob or a sycamore- tree, [he may cut it away] according to the plumbline’s measure.4 All trees that stretch over irrigated fields may be cut away according to the plumb- j line's measure. Abba Saul says: All trees that bear no fruit may be cut away according to the plumbline’s measure.
14. If a tree stretches into the public domain enough must be cut away to allow a camel and its rider to pass by. R- Judah says: A camel laden with flax or bundles of branches.5 R. Simeon says: Every such tree must be cut away according to the plumbline’s measure, because of uncleanness.6 1 Through the scattered chaff.
1 The prevailing wind in Palestine is from the north-west.
3 Some texts omit the following clause. ♦ i.e. whatever overhangs his border.
3 Which may rise four feet above and spread out four feet on either side of the loaded camel.
6 Overhanging branches may serve as ‘the roof of a tent’ so that if any uncleanness 3. 1. Title by usucaption1 to houses, cisterns, trenches, vaults, dovecots, bath-houses, olive-presses, irrigated fields, and slaves, and aught that brings constant gain, is secured by occupation during three completed years; title by usucaption to unirrigated fields2 [is secured by occupation during] three years and they need not be completed. R. Ishmael says: Three months during the first year and three months during the last year and twelve months during the middle year, which makes eighteen months. R. Akiba says: One month during the first year and one month during the last year and twelve months during the middle year, which makes fourteen months. R. Ishmael said: This applies only to a sown field; but with tree- plantations, as soon as a man has brought in his [grape-]crop and garnered his olives and gathered in his [fig-] harvest, this counts as three years.3 2. Three countries4 are to be distinguished in what concerns usucaption: Judea, beyond Jordan, and Galilee. If the owner was in Judea and an¬ other took possession [of his property] in Galilee; or if he was in Galilee and another took possession [of his property] in Judea, such usucaption is not valid: he must be with him together5 in the same country. R. Judah said: They have prescribed a limit of three years only that if the owner was in Spain6 and another took possession [of his property] during one year, they could make it known to the owner during the next year and he could return in the third year.
3. Usucaption without an alleged right of possession does not count as valid usucaption. Thus if one said, ‘What dost thou in my domain?’ and the other answered, ‘None ever said aught to me’, such usucaption is not valid. But if he answered, ‘Thou didst sell it to me’, or ‘Thou didst give it to me as a gift’, or ‘Thy father sold it to me’, or ‘Thy father gave it to me as a gift’, such usucaption is valid. If a man held possession [during three years] by virtue of inheritance he does not need to allege any right of possession.7 Craftsmen,8 jointholders, tenants, and guardians cannot secure title by usucaption. A husband cannot secure title by usucaption to the property of his wife, nor a wife to the property of her husband, nor a father to the property of his son, nor a son to the property of his father. This applies to one that claims the property by usucaption; but when the property was given as a gift, or when brothers shared a property, or when one claimed title by usucaption to the property of a proselyte,’ then if the claimant has shut in, walled up, or broken down aught soever, the title by usucaption remains valid.
4. If two testify of another that he has had the use [of property] during three years, and they are found to be false witnesses, they must make full restitution to the owner. If two [false witnesses] testify of the first year, two of the second, and two of the third, payment of restitution is divided (Ohol. 2') lies beneath the branches, its uncleanness is conveyed, ‘bv overshadowing’, to whatever else is beneath the branches. See p. 649, n. 3.
t If a man has no title-deeds his claim to rightful ownership can be sustained if he can prove three years' undisputed possession.
1 Whose fertility is dependent solely on the winter rain, and after the spring harvest remains uncultivable until the following October.
3 Even though the three crops were brought in within the same year; i.e. his having retained undisputed ownership during these three ingatherings suffices to sustain his title.
♦ Cf. Shebi. 9’. s The former and present occupants.
6 Heb. Ispamia. ' i.e. he need not prove what claim his father had.
8 Some texts omit 'craftsmen’.
* Who died without heirs, and whose property is accounted ‘ownerless property’ and the possession of the first comer.
370 FOURTH DIVISION: NEZIKIN between them into three parts. If three brothers bear witness and another is included with them, they can offer the three acts of witness,1 but their words count as but a single act of witness1 when the evidence is proved false.
5. In what cases does usucaption remain valid, and in what cases does it not remain valid? If a man put cattle or an oven or stoves or mill-stones in a courtyard, or reared fowls there or put his manure in a courtyard, such usucaption is not valid. But if he set up for his cattle a partition ten hand- breadths high (so, too, if it was for an oven or for stoves or for mill-stones), or if he brought fowls inside the house, or prepared for his manure a place three handbreadths deep or three handbreadths high, such usucaption is valid.
6. A gutter-spout3 cannot give title by usucaption, but title by usucaption can be claimed to the place [on which it discharges]. A gutter can give title by usucaption. An Egyptian ladder cannot secure title by usucaption, but a Tyrian ladder can do so.4 An Egyptian window cannot secure title by usucaption, but a Tyrian window can do so.5 What is an ‘Egyptian window’? Any through which a man’s head cannot enter. R. Judah says: If it has a frame, even though a man’s head cannot enter through it, it can secure title by usucaption. A projection, if it extends a handbreadth [or more] can secure title by usucaption, and the other [into whose premises it projects] can protest against it; but if it is less than a handbreadth it cannot secure title by usucaption, and the other cannot protest against it.
7. None may make his windows to open into the jointly held courtyard. If he bought a house in another [and adjoining] courtyard he may not open it into the jointly held courtyard. If he built an upper room over his house he may not make it to open into the jointly held courtyard; but, if he is so minded, he may build another room within his house or build an upper room over his house and make it to open into his own house. In a jointly held courtyard a man may not build a door directly opposite another’s door, or a window directly opposite another’s window; if the window was small he may not make it larger; if it was a single window he may not make it into two. But in the public domain he may open a door opposite another’s door, or a window opposite another’s window; if the window was small he may make it larger; if it was a single window he may make it into two.
8. None may hollow out a space underneath the public domain, [such as] cisterns, trenches, or vaults. R. Eliezer permits it if it is such that a wagon loaded with stones can [safely] go over it. Projections and balconies may not be built out into the public domain; but if a man is so minded he may withdraw [his wall] within his own domain and build out from it. If he bought a courtyard in which were already projections and balconies his right to maintain them there may not be disputed.
4. 1. If a man sold a house, he has not thereby sold its side- chambers, even though they open into the house, nor the room that is behind, nor the roof 1 For each of the three years.
1 If proved false the brothers are included as one, and pay only half of the restitution, the other witness paying the other half. Some texts omit 'when the evidence is proved false’.
t Which is movable and can be attached to the main gutter to drain off the water clear of the wall outside the courtyard. It gives him no title to share in the possession of the court¬ yard wall.
4 The former is small and the latter large. The placing of them in one place for a space of three years establishes the right to maintain it there only in the case of the latter.
s The latter is larger. If it opened out into a neighbouring courtyard the occupant of the courtyard may not block it up if it had remained open without protest for three years.
if it has a parapet ten handbreadths high (R. Judah says: If the roof has aught fashioned like a doorway, even if the parapet is not ten handbreadths high, it is not sold [as part of the house]).
2. Nor [has he thereby sold] the cistern or the walled cellar, even though he had written [in the deed of sale], ‘the depth and the height’; but he must buy himself a way thereto.1 So R. Akiba. But the Sages say: He need not buy himself a way thereto. And R. Akiba agrees that if he had said, ‘Excepting these’, he need not buy himself a way thereto. If he sold them to another, R. Akiba says: He [that bought them] need not buy hirnself a way thereto. But the Sages say: He must buy himself a way thereto.
3. If a man sold a house he has sold also the door, but not the key; he has sold a mortar that is a fixture but not one that is movable; he has sold the convex2 but not the concave mill-stone, nor3 [has he sold] the oven or the stove. But if he had said, [‘I sell thee] the house and all that is in it', all these are sold also.
4. If a man sold a courtyard, he has sold also its houses, cisterns, trenches, and vaults, but not the movable property; but if he had said, ‘It and all that is in it’, all these are sold also. But in neither case has he sold the bath-house or the olive-press that are therein. R. Eliezer says: If a man sold a courtyard, he has sold only the open space of the courtyard.
5. If a man sold an olive-press he has sold also the vat, the grindstone, and the posts, but he has not sold the pressing-boards, the wheel, or the beam; but if he had said, ‘It and all that is in it’, all these are sold also. R. Eliezer says: If a man sold an olive-press he has sold the beam also.
6. If a man sold a bath-house he has not sold the planks or the benches or the hangings; but if he had said, ‘It and all that is in it’, all these are sold also. But in neither case has he sold the water-containers or the stores of wood.
7. If a man sold a town, he has sold also the houses, cisterns, trenches, vaults, bath-houses, dovecots, olive-presses, and irrigated fields, but not the movable property; but if he had said, ‘It and all that is in it’, even if cattle and slaves were in it, all these are sold also. Rabban Simeon b. Gamaliel says: If a man sold a town he has sold also the town Warden.4 8. If a man sold a field he has sold also the stones that are necessary to it, and the canes in a vineyard that are necessary to it, and its unreaped crop, and any reed-thicket that covers less than a quarter- kab's space5 of ground, and the watchman’s hut if it was not fastened down with clay, and ungrafted carob trees and young sycamores.
9. But he has not sold the stones that are not necessary to it or the canes in a vineyard that are not necessary to it or the produce that is already gathered. But if he had said, ‘It and all that is in it’, all these are sold also. But in neither case has he sold any reed-thicket that covers a quarter-^uAV space of ground, or the watchman’s hut if it was not fastened down with clay, or grafted carob trees or cropped sycamores,6 or any cistern or winepress or dovecot, whether they lie waste or are in use. And he [that 1 From the new owner if he wishes still to use the cellar.
* The lower, usually fixed, stone.
3 Variant: ‘but he has sold the oven and he has sold the stove’, a reading which assumes that they were fixtures.
4 The rendering is uncertain. Other renderings proposed are ‘the boundary-marker’, 6 Sycamores which have reached full growth and are valuable for their own sake for their plentiful supply of building-timber.
372 FOURTH DIVISION: NEZIKIN