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Bava Basra, 23

1) THE RAVENS IN THE TREES

QUESTION: The Gemara relates that Rav Yosef owned some small date-palms, under which some blood-letters were practicing their profession. The blood attracted ravens to the area, and the ravens perched themselves upon Rav Yosef's trees. Rav Yosef demanded that the blood-letters leave in order to get the ravens to go away. The Gemara concludes that even though the damage that the blood-letters were causing to Rav Yosef was only indirect ("Gerama"), the Halachah is that it is Asur to cause damage even indirectly (through a "Gerama").

This ruling seems to contradict another ruling of the Gemara. The Gemara rules like Rebbi Yosi who maintains that a person may set up an object in his own domain even though it might cause damage to someone else's property. The Mazik is not required to distance himself, unless the damage is being caused by "Girei Dilei" -- by the Mazik "shooting of his arrows" into the domain of the Nizak. Why, then, were the blood-letters (the Mazik) required to move? They certainly were not actively sending the ravens to Rav Yosef's trees to damage them! (RABEINU YONAH, RASHBA)

ANSWERS:

(a) RABEINU YONAH and the RASHBA answer that the blood-letters *were* causing the ravens to go into the trees of Rav Yosef. When the ravens would come to eat the blood, the blood-letters would chase them away such that they would fly up to Rav Yosef's tree. Hence, the damage caused by the ravens indeed was "Girei Dilei," the arrows of the blood-letters, and thus the blood-letters were required to move.

(b) TOSFOS later (26a, DH Aval b'Gefanim, and end of DH Zika) seems to hold that even without the act of the blood-letters of chasing away the ravens, the damage caused by the ravens would still be considered "Girei Dilei." Apparently, Tosfos maintains that by spilling blood underneath the trees, the blood-letters are causing the ravens to come, and thus their act of causing the ravens to come is considered an act of "Girei Dilei." (See SHI'UREI REBBI SHMUEL, #61.)

(c) The PISKEI HA'RID (cited by OHEL TORAH) writes that in this case, Rebbi Yosi would agree that the blood-letters were required to move even though they were not causing damage through "Girei Dilei." Normally, the Mazik does not have to distance himself, because he is *in his own domain,* and a person is entitled to do whatever he needs to do inside his own domain. In this case, however, the property beneath Rav Yosef's trees did not belong to the blood-letters, but rather it was public property. Therefore, they were *not* entitled to do whatever they needed to do there, because they were not in their own domain. (See BIRKAS SHMUEL 20:3.) (I. Alsheich)

QUESTION: The Gemara relates that Rav Yosef owned some small date-palms, under which some blood-letters were practicing their profession. The blood attracted ravens to the area, and the ravens perched themselves upon Rav Yosef's trees. Rav Yosef demanded that the blood-letters leave in order to get the ravens to go away. The Gemara says that the blood-letters cannot claim that they had gained the rights to work there through a Chazakah (that is, no one protested when they started to work there, and thus they attained the right to work there), because there is a principle that "Ein Chazakah l'Nezikin" -- a Chazakah does not work for an activity that causes damage. Even though this principle was said only with regard to activities that cause severe damage (such as setting up something that makes a lot of smoke, or setting up a bathroom), Rav Yosef claimed that he was extremely sensitive and that the damage being caused by the blood-letters (that is, either the blood that the ravens were splattering around him (TOSFOS), or the loud noise that the ravens were making (BI'UR HA'GRA CM 155:116) was akin to him like smoke or a bathroom.

Is one entitled to claim that a certain activity that someone else is doing constitutes a serious disturbance, based on his own subjective feelings?

ANSWER: RABEINU YONAH and the RASHBA (see also RABEINU CHANANEL) write that from this Gemara we learn that anyone who is known to be extremely sensitive to a certain damaging agent and cannot tolerate it is entitled to demand that the other person move the damaging agent, and the other person cannot make a Chazakah to continue doing the activity there. (I. Alsheich)

23b

QUESTION: The Mishnah states that when a person finds a pigeon between two coops, we assume that the pigeon came from the coop that is closer to it, and thus the pigeon is returned to the owner of that coop. When a person finds a pigeon between two coops and it is an equal distance away from both of them, then the pigeon (or its value) is divided between the two coop-owners.

The Acharonim ask that dividing the pigeon between the two owners does not seem to be a valid way of resolving the problem. The finder has an obligation to return the pigeon to its rightful owner. In a situation where two opposing claimants both offer proof that the lost object belongs to them, the Gemara in Bava Metzia (28a) rules that we do not divide the object between them, but rather the finder must place the object in escrow until conclusive proof is brought as to who owns it. Since the finder has an obligation to return the object to its rightful owner, he will not be fulfilling his obligation by dividing it and giving it to both claimants. Why, then, does the Mishnah here rule that, out of doubt about who owns the pigeon, the finder should divide the pigeon and give it to both claimants? (DIVREI CHAIM (Hilchos Kidushin #21), SHA'AREI YASHAR (4:9, 6:14), CHIDUSHEI REBBI SHIMON SHKOP (#8), KOVETZ SHI'URIM, and others)

ANSWERS:

(a) The Acharonim (ibid.) explain that the Gemara's ruling (in Bava Metzia) that the finder must leave the object in escrow applies only when each claimant offers Simanim that attest to his ownership of the object. In such a case, the doubt about who owns the object was created only *after* the finder lifted up the object and became obligated to return it. Hence, he cannot fulfill his obligation to return it by splitting it between the two claimants. In the case of our Mishnah, though, the ownership of the pigeon was already in doubt even before the finder picked it up, since the pigeon was resting at a point that was an equal distance from both of the coops. Had the two owners come to court to contend the ownership of that pigeon, the court would certainly have split the pigeon between them. Therefore, when the finder picked up the pigeon, each of the two claimants were already entitled to take half of it; the finder picked up an object that already belonged to both of the claimants. The finder's obligation to return the object is in accordance with the status of ownership of the object at the time that he found it. Accordingly, by giving the pigeon to both of the claimants, he is fulfilled his obligation to return the pigeon to its rightful owner.

(b) REBBI SHIMON SHKOP zt'l in SHA'AREI YASHAR (6:14) answers this question based on a principle that he establishes there: the obligation to return a lost object to its owner does not apply when the owner is present. When the owner is present, the object is no longer considered "lost," and, consequently, the finder is exempt from the obligation of Hashavas Aveidah. Here, since the pigeon certainly belongs to one of the two claimants, there is no obligation of Hashavas Aveidah, since the object is not a "lost" object. Therefore, we apply the principle that applies in any case of money in doubt (where there is a "Derara d'Mamona") and divide the money.

(c) The KOVETZ SHI'URIM suggests further that in the case of the Gemara in Bava Metzia, where each of the two claimants presents Simanim to prove that the object becomes to him, the two claimants have two proofs which contradict each other. To divide the object between the two of them would contradict both of the proofs. In contrast, in the case of our Mishnah, neither claimant is giving proof that the pigeon belongs to him. Therefore, to split the pigeon between the two of them would not contradict any proof to the contrary. (The clarifying factor of "Karov" does not apply here, since the pigeon is equally close to both of the coops.) (I. Alsheich)