Bava Batra, Chapter One, Mishnah Six
Mishnah six returns to discuss a subject which began in mishnah one. There we learned the laws of building walls in shared courtyards, gardens and valleys. Mishnah six discusses which jointly-owned properties can be split into two parts.
1) They do not divide a courtyard until there is four cubits for this [partner] and four cubits for this [partner].
2) Nor [do they divide up] a field until it has nine kavs for this [partner] and nine kavs for this [partner].
a) Rabbi Judah says: Until it has nine half-kavs for this [partner] and nine half-kavs for this [partner].
3) Nor [do they divide up] a garden until it has a half-kav for this [partner] and a half-kav for this [partner].
a) Rabbi Akiva says: A quarter-kav.
4) Nor [do they divide up] an eating hall, a watch-tower, a dovecote, a cloak, a bathhouse, or an olive-press until there is sufficient for this [partner] and for this [partner].
5) This is the general rule: whatever can be divided and still be called by the same name, they divide; otherwise they do not divide.
6) When is this so? When they do not both wish [to divide the property].
a) However, if both wish they can divide it even if it is smaller.
b) And with regards to the Sacred Books, they may not be divided even if both are willing.
This mishnah is quite straightforward so we will explain it briefly. Sections four and five basically summarize the laws of splitting jointly held property. One partner can force another partner to split the property only if the remaining property will still be sufficiently large to use it for its intended purpose. For instance if partners jointly own a dovecote (a place for breeding and storing pigeon doves) and one partner wants to split it, there must be enough room in each half for both partners to use it as a dovecote. Furthermore, section five clarifies that each half must be able to be called by its previous name. For example, if partners owned a truck one could not force the other to take half of the truck, since half a truck is worthless. If, however, partners owned an iron mine, one could force the other to take half, as long as each half was large enough to be an iron mine in its own right. The first three sections of our mishnah give concrete sizes with regards to courtyards, fields and gardens, but the principle applied is basically the same as that in sections four and five.
Section six emphasizes that the first five sections are true only as long as one partner does not agree to split the property. If, however, both parties agree to split the property they can split an even smaller piece. The one exception to this rule are scrolls containing the books of the Bible. It would not be respectful to the Sacred Books to cut a scroll in half. If, however, the books are in separate scrolls partners could divide them. [Note, in the time of the Mishnah all books were written in scroll form. The modern codex was not yet invented.]
Questions for Further Thought:
· Why does the mishnah give concrete numbers for the size at which courtyards, fields and gardens may be split but not give concrete numbers for the things listed in section four?