Bava Kamma 81

This land is my land?

As Woody Guthrie’s classic American folk song has it, “This land is your land, this land is my land.” But what does that mean in practice? Today’s daf asks exactly this question. 

When the Israelites left the land of Canaan for Egypt in the book of Genesis, they were a family of 70 men, plus wives and children. But when the Israelites prepare to return to the land of Israel from their wanderings in the desert, Numbers 1:46 counts 603,550 Israelite adult men, not including the Levites — a total population of over a million. The kinds of family negotiations and compromises that can keep people living together no longer work at that scale. But then how can people actually live together on the same land in harmony?

beraita on today’s daf lists ten conditions that Moses’ successor, Joshua bin Nun, instituted to help create a healthy society on the shared land they entered under his leadership:

(1) People may graze their animals in forests; and (2) they may gather wood from each other’s fields; (3) they may gather wild vegetation except for fenugreek; (4) and pluck off a shoot anywhere except for olive shoots; (5) and the people of the city shall have the right to take supplies from a spring that emerges for the first time; (5) and they may fish in the Sea of Tiberias (i.e., the Sea of Galilee) provided that the fisherman does not build a fence causing an impediment to boats. (6) They may relieve themselves behind a fence, even in a field that is full of saffron; and (7) they may walk in permitted paths until the second rainfall; (8) and they shall have the right to veer off to the sides of the roads because of hard protrusions of the road; (9) and one who becomes lost among the vineyards may cut down branches and enter, or cut down branches and exit; (10) and a corpse with no one to bury it acquires its place (that is, it becomes its rightful burial spot). 

In its own way, each of these ten conditions lays out limitations on an individual’s claim to a specific property in the face of communal need. No one can claim ownership over the forests in a way that prevents other people’s animals from grazing there and no one can claim ownership over the Sea of Galilee to prevent others from fishing there. If you really have to go to the bathroom while on a road trip, you can use someone else’s field for a bit of privacy — even if they are growing very expensive crops. 

This last condition calls to mind a controversial verse of Guthrie’s song: “There was a big, high wall there that tried to stop me./ A sign was painted, said “Private Property,”/ But on the backside, it didn’t say nothing./ This land was made for you and me.” (If you’re familiar with the folksong but don’t know this verse, you can read the history of the song — and this verse — here.)

Though there is a concern to reserve public resources for all, this beraita does not call for the abolition of private property. But the tradition about the ten conditions is early. The next set of discussions on today’s daf are presented as later talmudic commentary on this early tradition — and many of these commentaries dramatically limit the scope of people’s rights to use someone else’s property.  Let’s look at one example, that people have the right to graze their animals in any forest: 

Rav Pappa said: We said only small animals in a forest of large trees. But small animals in a forest with small trees, or large animals among large trees, no. And, all the more so, large animals among small trees, no.

The Talmud permits people to graze only particular kinds of animals in particular kinds of forests. And in discussing the next nine of Joshua’s conditions, the Talmud continues to introduce nuances that limit the ability of one person to use another person’s land. Ultimately, then, the daf leaves us with the idea that what it means to own private property depends on historical and social context. How can we live together in harmony? That depends on the nature of our society. But in most cases, there is a need for both private and public use of land. It also reminds us, through the actions of the rabbis, that we get to participate in defining and redefining what that means for a new generation. After all, “this land was made for you and me.”

Read all of Bava Kamma 81 on Sefaria.

This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on January 22nd, 2024. If you are interested in receiving the newsletter, sign up here.

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