Notes on Masecet Bava Batra of the Talmud,
Second Chapter of ‘Lo Yachpor’
Based on learning August 2004-May 2005 with chevrutot and R’ Aryeh Strikovsky
a) Overview on the chapter: The halakhic rulings found in the second chapter of Masecet Bava Batra deal extensively with preventing damage to an individual property by another person. The rulings in the Mishna establish Jewish law regarding ‘environmental’ damages between neighbors, which are clarified in the Gemara/Talmud’s discussion. The Jewish sages, in explaining the Law passed down from G-d to Moses on Mt. Sinai, establish a system for protecting an individual’s right to a healthy, peaceful lifestyle—with access to natural light, clean air, relative quiet, and property integrity. The fourth chapter of Bava Kama deals more extensively with damages by an individual to the public domain.
Two main views on property and land use and environmental damages run through this chapter: The first—the majority opinion of the rabbis, argues that a person must not do something on their own property that will damage their neighbor. Consequently, an individual must take precautions to ensure they do not damage their neighbor, including not using or doing something on part of their own property if that would damage their neighbor.
The second view—the dissenting opinion of Rabbi Yosi, states that a person can do as they please within their own property, even when they damage their neighbor indirectly or at a future time. This view is informed by the reality of a land and water scarce-environment in the semi-arid Israel of R’ Yosi’s day. Jewish farmers, on the brink of starvation, needed to use every inch of their land to produce enough food to survive. Also, his dinim apply to a few pounds of olive residue and not large quantities of industrial pollutants. On a large scale, as in the case with a tannery, R’ Yosi agrees that distancing is needed. Cisterns were need to store water year-round since rain seldom occurs between May and October. (get stats on land scarcity)
Historical/contextual background: In the time of the Amoraiim (X to X CE), Jews most mostly farmers in Babylon. Leading rabbis were farmers, as shown by the discussion between Rav Papa and X on p. X about distancing one’s date tree. Also, Abaye worked in his fields and asked his students not to see him during the busy agricultural season of Nisan (April) and Tishrei (October) (get source f/ R’ Str).
-None of the commentators had a concern about the global environment, since it was not in danger.
-a challenge exists in applying the rulings of a largely agrarian, pre-modern, pre-industrial society to a largely urban, modern, industrial society
-Majority of agriculture in Israel at time of Tannaim and Amoriim was rainfed. Irrigated agriculture in Israel peaked during the time of Herod (should check whether it ever reached a majority of land)
Basis in the Torah of these rulings: ואהבת לרעך כמוך, לפני עיבר לא תתן מכשול, ועשית את הישר ואת הטוב בעיני הי (last source f/ Vaetchanan) Get sources from R’ Hirsch and Akiva —how chapter is about what one should not do to another person, and thus derived from ‘Love your neighbor as yourself’
Specific issues:
p. 17a Tosofot ‘lo yachpor’ The cases of distancing a cistern (needed to store water year-round in the semi-arid environment of Israel—see Yerushalmi that human settlement depends on cisterns), irrigation ditch, and laundry pool all concern damage caused by moisture, i.e. water seeping into the soil and weakening the soil. While Rava says the reason an individual must distance their ditch is to prevent damage that would occur immediately from digging the cistern, etc., this is only the immediate damage that occurs. Rava stated this to show how these cases involve direct, immediate damage to a neighbor. The moisture damage that occurs is a separate, long term reason. However, if it were not because of moisture damage, a person would not have to distance three tephachim (in a case where a neighbor has not built a cistern next to one’s property).
Tosofot ‘Marchikim et Hagefet’ Explains how Rava goes according to Rabana: because they say future damages must be preventedThese materials permanently change the composition of the earth and are injurious to any wall built in the future. Also, neighbor A will be slow to remove the materials from the border when neighbor B requests that it be done so neighbor B can build a wall. Therefore neighbor B can prevent neighbor A from placing those materials next to the border in the first place.
-Just like putting manure and salt on the ground in the long terms causes permanent changes to the ground that prevent a neighbor from building a wall, so too pumping fossil fuels into the atmosphere in the long term may cause irreversible changes in global climate that could damage human societies and the natural world.
Tosofot ‘Sela haba byadiim: these damages are future and indirect
17b Damage of vapor/heat to local environment, either by corroding a neighbor’s wall or by heating a neighbor’s second-story apartment, is parallel to damage caused by global warming.
-damage of vapor or heat to local environment, either by undermining wall or by heating neighbor’s apartment, is parallel to damage caused on a global scale by human-induced climate change.
Rashi: ‘afilu l’rabanan’ Explaining the opinion of the Rabbis: a person need to distance a damaging object within their own property so as not to damage a neighbor
Rabeinu Gershom: very bottom: zefet is the waste/refuse of the olives that is taken out of the building containing the olive press, a more industrial activity for that time. Relevance to nuclear and other toxic waste and Superfund cleanup sites.
18a: TaShma #2: Placing olive residue, manure, etc next to a wall. Din: Distance three tefachim. Case of restricting present action because of a potential future damage. Attack on Rava: assumption is that neighbor’s wall already in existence. Yet Rava says ‘don’t place’ even if wall is not in existence. A deeper attack when consider that Rava holds ‘don’t place’ because every shoveling act damages land, such that damage is direct causation. Yet how can it be direct damage to a wall before the wall is built?
18a: Mustard and Bees: R’ Yosi’s opinion that neither has to distance in a case where each neighbor damages the other is that since both are damagers, they will have to learn to coexist or will end up being mutually injurious to eachother. Yet neither has the moral ground to demand the other should distance. R’ Yosi believes the halakha should not intervene in such a case. If the problem is serious enough to jeopardize both individuals, the neighbors will distance themselves. If it is not such a serious problem, each neighbor will eat the costs of being damaged. Also issue of power dynamic: when both neighbors damage eachother, it’s ok, but not when one party damages another
-relevant to tragedy of commons and incentive to pollute
-19a top about pouring urine sheds light on Gemara’s sensitivity to people need to urinate. MT: a) relevance to city government’s responsibility to provide accessible public toilets. B) dumping a large pot of urine next to someone’s property can be seen as similar to current issues of toxic waste dumping with its impact on groundwater.
19a bot Distancing a laundry pool and water channel: The inclusion of a laundry pool in the ruling of the Mishna teaches that even non-permanent activities that cause damage must be distanced from a neighbor. If the Mishna had only taught about a laundry pool, one might think the reason for distancing is only in a case of stagnant water, but in a case of a water channel one doesn’t need to distance. Therefore the Mishna also needs to teach about a water channel, as it had to teach about a temporary damage like a laundry pool (because a person may change profession, whereas a water channel make of rocks will stay for generations—see Rashi ‘nevrechet hacovsin).
20b Distancing ovens: A domestic oven, used for personal consumption must be distanced three tefachim from one’s neighbor, while an industrial oven cannot be built at all next to a neighbor’s apartment. This shows the different rulings for private and industrial production, and how some industrial production is not permitted at all near residential areas. Relevance to Ramat Hovav industrial zone’s proximity to Beduoin villages and south Beer Sheva. Specifically, how the industrial zone is not well within the 10 or 12 km distance stated by the Health Ministry as needed between the industry and residential areas. Also, a person must pay if they cause their neighbor’s house to burn down, according to the majority opinion of the rabbis.
20b Abaye says a distinction exists in the din of the Mishna for industrial versus domestic-use ovens.
20b Smoke harming wine: Rav Yosef says that in his time even smoke from a candle would harm wine, a more stringent ruling than in previous generations. This shows that sensitivity to environmental damages can increase over time, as occurred in the U.S. between 1880 and 1980.
20b Bringing outside residents into a residential courtyard to buy products from a courtyard resident is forbidden not because of the noise alone, but because they are outsiders and courtyard residents should not be expected to tolerate that additional noise.
21a Baraita on catching fish. See Tosofot ‘Marchikim’ explaining Rabeinu Tam on issue of river being hefker. Since a river is a much greater commons than a field or a marketplace, a person can lay claim to part of that hefker (non-owned) area to take it for themselves. Relevance for overfishing and establishing a sustainable catch and enforcing it through international laws that make sea area into private property so a tragedy of the commons does not occur.
Machloket Rashi and Tosofot on R’ Yosi’s views on direct causation: Rashi to Leima M’tanai: R’ Yosi argues later in Mishna about planting a tree next to a pit, which he says is allowed because it won’t cause immediate damage. There is a great amount of cases in the Mishna that don’t go according to R’ Yosi because they are not cases of direct causation.
Tosofot to 22b (explaining Rabeinu Hananel in Leima M’tanai): all Mishnaot are like R’ Yosi except case of a tree’s roots (see extensive paper notes)
22b On distancing a wall from neighbor’s wall to allow sunlight
22b On distancing a ladder from a dove’s nest
Discussion on whether this is a case of direction causation, i.e. whether goes according to R’ Yosi. Mishna teaches that an indirect damage is also prohibited (see notes)
23a On blood on dates. Introduces concept of ruling varying depending on level of one’s tolerance for/sensitivity to a given damage. Rav Yosef bothered by having blood on his dates even though blood could be washed off. Halakha can vary significantly based on different peoples’ reactions to a particular damage.
27b On Present versus future damage: Rashi, Batar: says v’hare hozrin to add that in present a person only takes action so that there is no damage in present. Yet one does not act in the present to cut down a tree or severely cut a branch to prevent future damages.
-Rashi: c’dei shthe: R’ Eliezer says that if the roof of the hole is strong enough to hold a laden wagon, is Mutar, even though in the future the roof won’t hold the wagon
-Ritva: since here an individual damages the public, must take present action to prevent it.
-Din is more stringent when an individual damages the public. The damage does not have to be direct causation (girei dilei) or indirect causation (garmei) for an individual to have to distance themselves
-R’ Eliezer sees there are limits to what the public can demand from the individual, whereas rabanan side more with the public.
-Rosh
-Tosofot, in מרחיקין את הגפת כו, teaches “the explanation…
Change in the composition of the soil would be injurious to a wall built on that soil in the future.
Other Sources: -Bava Kama 50b: story of man putting stones in public domain
-Bava Kama 30a: on putting compost in a public place and even in one’s own fields
-Kedoshim Tihiyu and ‘Do what is straight in the eyes of Gd’ (Vaetchanan), and Bamidbar on people unnecessarily killing quails in the desert deal with humans not damaging nature because it’s bad in and of itself, without regard for its impact on humans, as this chapter largely deals with.
General Issues from chapter: -city residents’ concerns about nuisances taken seriously by halakha even if there’s no directly corresponding halakha
-metrics for evaluating a damage: scale (small/large), term (short, long), directness (direct, indirect). Pre-industrial pollutants were mostly small-scale, whereas industrial pollutants are often on a large-scale.
General Application to modern environmental problems:
-Harming nature harms people: One might argue that this chapter only deals with damage to a person, and not to the natural world, and therefore is not relevant to modern environmental problems where humans damage the natural environment. However, the reality today is that humans are no longer immune from degradation of the natural world, and that environmental damage in one place inevitably impacts human communities in a different place (get arg on ecosystem connections and human dependence on the ecosystem). Humans are dependent on the natural world for their survival. Today clearcutting rainforests in Brazil impacts icemelting in the Himalaya. Or more directly, forest fires in Indonesia cause thick pollution in Kuala Lampur, Malaysia.
-This chapter shows that the natural world is not hefker, for the taking. A person must temper their actions that impact the environment based on how their action affects another person.
-Environmental safety regulations are supposed to prevent significant environmental damages, but in many countries and cases they do not. Therefore the regulations need to be more stringent to prevent the environmental harm.
-Refineries cause groundwater and air pollution to nearby communities (research about Chevron in Richmond and impact on minority communities). Link to specific issues in chapter, perhaps tannery because of ‘refining’ leather and causing air pollution.
-the concerns of city residents about environmental damages are considered halakhic issues even if there is no corresponding halakha on the issue (R’ Str)
-Curbing climate change and biodiversity loss require making individual damagers responsible for the indirect damage they cause to others.
-Ramat Hovav industrial zone and garbage dump
-Numerous sources in the Jewish tradition make clear that Gd is concerned about how humans care for the planet. This chapter in Bava Batra concerns a scope and scale of damages relevant to 2nd century life in Israel-- from one neighbor to another neighbor, or to an entire city. In the modern world, the scope and scale of damages are much greater, in terms of impact to human societies and to the natural world.
-Damage to the public is more severe, and rulings are more stringent in trying to prevent it. Relevance to climate change and BD loss.
-1981 law in Israel allows gaps in Israeli law to be filled by halakha (ask R’ Str)
-cases have occurred in Israel where a community or individuals took a company to a religious court for causing damages. Question today is whether the Israeli government will ask the rabbis concerning economic competition and environmental issues
-The aggregate actions of individuals is having a negative effect on Israel’s environment. Examples include significantly increased air pollution on Yom Ha’atmaut, Erev Pesach, Lag B’Omer, and Chol Hamoed due to thousands of people barbequing.
-issue of how to use property and of present vs. future damages is relevant for land use decisions, including with endangered species issues in the U.S.
Broader Principles:
Precautionary Principle:
Future versus immediate damage: Future damage: planting a tree next to a wall or cistern will damage the wall or cistern in the future when the roots grow. Also, digging a hole under a road that may collapse in future (27b) Immediate damage: the shaking of the ground that occurs from digging a well.