Public Pathways

Bava Batra (6:7) | Yisrael Bankier | 18 days ago

The Mishnah (6:7) discusses the cases where the public have been using a pathway through a person property. The owner then decided to give them a different pathway, on the side, instead. The Mishnah explains that the pathway that he designated is indeed given over to the public, yet the he would not be able to seize that original path. In other words, but the paths are now public thoroughfares. We shall try to understand this Mishnah.

The Gemara (99b) probes why this attempt backfired. Rashi explains that the public does not lose out since they still have a pathway through this person's field. Why then does it not work? The Gemara asks if it because he took the matter into his own hands to resolve without going to Beit Din. Rashi explains that it cannot be the case, since one is able to if he would be suffering a loss.

The Gemara presents three answers. Rav Zvid answers that this is because there is a concern that the passage he would provide them with will be a less direct passage through field. Given that it is handed to the public and there is not single person responsible, it is unlikely that anyone will object to this initiative which is to their detriment. Put simply it is a gezeira. Rav Masharshaya explains in a similar vein, but that the Mishnah is only referring to a case where he gave them a worse pathway. The Ritva explains that that is why the Mishnah chose the term tzad (side) for location of the second path. Rav Ashi however explains that if the new allocation was a direct pathway through the field, moving the passage in any direction will always be less convenient for someone.

The Rashbam explains that there is no practical difference between the opinions of Rav Zvid and Rav Ashi. The law in our Mishnah applies in all cases. The merely differ in their explanation of the rationale behind the Mishnah. Note that this differs with the Meiri's understanding, who explains that according to Rav Ashi, if the path was moved in a way that was beneficial to everyone then it would indeed work. This understanding of Rav Ashi would bring him more in line with Rav Marsharshaya than Rav Zvid.

The Gemara however is still not satisfied and asks that the he was unsuccessful in seizing the first path, then why can he not take back the path he attempted to given them in its stead. The Rashbam explains that the owner should be able to state that what he gave over was in error.

The Gemara answers, that one is not allowed to ruin a public pathway, provided it was not stolen from the owner of the land through which it passes. This explains why he cannot touch the original path. The Rashbam explains that this was also certainly be the case if he willing handed over that path. In our case, that would be the second path, assuming it had already been used. Once they started using it, it is "assur" to damage.

The Meiri notes that the Gemara explains that it is assur (forbidden) to ruin a public pathway. He explains that handing over something to the public is like handing over something to shamayim (or hekdesh). He stresses that the connection between the two is because when one is engaged in the needs of the public it is considered like the needs of shamayim.

Download