At this point in our journey through Bava Metzia, we’ve learned that one can acquire an object that is on their property. But how high up does that property extend? To answer this question, Rava offers us an amazing case to think through.
Rava raises a dilemma: If one threw a purse through this entrance and it exited through another entrance, what is the halakhah? Is the airspace (of a courtyard) that will not eventually come to rest regarded as though it has come to rest, or not?
Rava imagines that an object, thrown by someone with apparently incredible aim, sails through the front door of the house, through a courtyard, and through another door into another home. In such a case, can the owner of the courtyard acquire the object as it passes through their airspace? The Talmud next suggests that perhaps we they can:
Rav Pappa said to Rava, and some say Rav Adda bar Mattana to Rava, and some say Ravina to Rava: Isn’t this (the same as) the mishnah, which stated: If one saw people running after a found ownerless animal …
The mishnah on yesterday’s daf suggests that one can acquire an animal that is roaming through their field, even if the animal eventually moves on to someone else’s field. So if one can acquire an animal passing through their land, perhaps one can also acquire an object passing through their airspace? But Rava isn’t having it:
He said to him: Are you saying rolling is the same? A rolling item is different, as it is as though it has come to rest.
Rava notes that an animal or object moving (i.e. rolling) across land is consistently making contact with the ground. And something which in any given moment appears as if it’s resting on the ground cannot be compared to something that never actually touches the ground, like the object flying across the courtyard.
Rava’s statement concludes the Talmud’s discussion of airspace. And indeed, the question remains unresolved; even the later halakhic commentaries are undecided on the issue. And to be fair, I don’t know how urgent it would have been to decide the matter. How often might someone actually throw something so precisely that it would go through one front door and into another, and in the interim, a homeowner would have the time and presence of mind to effect acquisition?
Let’s end with a fun thought experiment. I live in a suburb of Texas where recreational drones bearing cameras frequently fly over our yards, causing noise pollution and compromising our privacy. How would the rabbis have thought about recreational drones? There is no doubt they would have been concerned about the privacy concerns this raises. But how about acquisition? If a drone flew over someone’s courtyard in fifth-century Pumbedita, would the rabbis have said it could be halakhically seized? Also, it’s worth remarking that drones can hover, so unlike in Rava’s scenario, where the homeowner would need to act almost instantly to acquire the object, in this case a property owner would have plenty of time to intend an acquisition.
Of course, there weren’t drones in ancient Babylonia and the Talmud doesn’t answer these questions, probably because it didn’t need to. But as modern law wrestles with the legal questions this new technology poses, it’s interesting to think how halakhah would approach the issue, to see if there are differences. Today, civil law doesn’t allow for people to simply seize drones that hover above their property. But maybe it should.
Read all of Bava Metzia 12 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on March 11th, 2024. If you are interested in receiving the newsletter, sign up here.
