Talmud Commentary: Bavli 3/1. bSukkah 31a (mSukkah 3:1)

@General observations

Within the discussion of the mishnaic ruling that “a stolen or a withered lulav is invalid” (mSuk 3:1), the gemara introduces a baraita describing a dispute between Rabbi Eli‘ezer and the sages. The controversy concerns two related issues: a stolen sukkah and one constructed in the public domain (robbing the public of access to it). Rav Nahman explains that such a dispute only refers to a situation where a robber forcibly removes the owner of the sukkah and then dwells therein. Two more topics relate to this issue.

1. First, can one acquire ownership of land by theft? If so, then both the land and the sukkah on the land belong to the robber. If not, then both the land and the sukkah still belong to the person from whom it was robbed, and the sukkah is consequently considered a borrowed object. A similar dispute, albeit related to another object, is cited in bBQ 117b:

Here Rabbi Ele‘azar (or Eli‘ezer in certain MSS[1]) believes that a robber “acquires” land by theft. Consequently he is liable for the damage caused to the land from flooding and must return another undamaged piece of land to the person whom he robbed. The sages, on the other hand, regard the land as perpetually belonging to its original owner. Therefore only the original damaged land need be returned to the original owner.

2. The second issue involves the question whether one can fulfill the obligation to reside in the sukkah by using one belonging to another person. According to bSuk 27b:

In this sugya, Rabbi Eli‘ezer asserts that since a person cannot fulfill his obligation with another person’s lulav, likewise, he cannot use another person’s sukkah. Therefore, if someone attacks another person and steals his sukkah, then such a sukkah is invalid for fulfilling religious obligations. Rabbi Eli‘ezer deems this to hold true both for those who agree that the land is stolen (and therefore the sukkah upon it is invalid for fulfilling religious obligations) and those who do not (since the sukkah would be standing on borrowed land, which also invalidates it for fulfilling the religious obligation). The sages, on the other hand, do accept the use of another person’s sukkah. They believe that the land is not defined as stolen and therefore the sukkah is a “borrowed” structure in which a person can fulfill his obligation.[1]

Subsequently, another case concerning the sukkah and theft is presented in our gemara. This time the question involves the validity of a sukkah whose roof-covering (סכך) was constructed with stolen wood. According to the baraita cited here, all agree that inasmuch as the purpose and name of the object stolen was transformed from “wood” to “roof-covering” the thief is only liable to return the cost of the wood to the owner and not its value as a roof-covering. Hence the sukkah is valid.

The gemara then implements two moves to substantiate the halakhic viewpoint that the dispute between Rabbi Eli‘ezer and the sages only concerns a robber who attacked someone and forcibly removed him from his sukkah, and not one who stole wood and used it for roof-covering for a sukkah.

1. The gemara draws a parallel between a stolen sukkah and one that is built on a public thoroughfare. It thereby demonstrates that the owner of the sukkah is not the owner of the land upon which it is erected and therefore, in both cases, the sukkah is invalid.[2]

2. The gemara’s position is also substantiated by a story about Rav Nahman and an old woman who complained that the Exilarch and the rabbis are robbers, because they stole sukkah-covering from her. The Exilarch was the leader of the Jewish autonomous community in Babylonia and therefore such an accusation is grave. Perhaps because the gravity of her words cause Rav Nahman uneasiness, he replies that the old woman is only owed the cost of the wood.

@Feminist observations

This last mentioned story is of relevance to a feminist interpretation. The following questions related to the portrayal of the main character in the story, an old woman, are worth pursuing:

1. The old woman’s social status: Was it acceptable for women to appear before religious judges in the talmudic period or was this case an exception?

2. The old woman’s decision to argue her case before Rav Nahman: Was it intentional or coincidental?

3. Rav Nahman’s reaction to the old woman: Was it based on personal or gender considerations?

4. The old woman’s assertive character: Was it based on reality or was it a literary creation? If the latter, then what are its implications?

1. The old woman’s social status: Did the old woman belong to the lower or upper echelons of society? The large number of slaves mentioned in the tradition (three hundred and eighteen) could indicate that the old woman was very wealthy and therefore (like the Exilarch and his entourage) belonged to the upper class. Consequently, she could be requesting Rav Nahman’s assistance due to her connections to people in high positions. If the old woman did indeed belong to the upper echelons of society, then this story describes the exception and not the norm.

However, the opposite could also be argued. Based on Rashi’s interpretation that the three hundred and eighteen slaves mentioned in the sugya refer to those owned by the patriarch Abraham, the old woman may have been implying that she also is a descendent of Abraham and deserves her basic legal rights. In other words, she was a simple woman who felt exploited by those in power (the rabbis and the Exilarch). This would indicate that there were cases in which lower-class women could demand justice in rabbinical courts in spite of the numerous talmudic sayings opposing it.[1] Moreover, the Bavli features numerous stories of lawsuits by or against women, which would indicate that such a phenomenon was not unusual.[2]

2. The decision to appear before Rav Nahman: intentional or coincidental? If the old woman belonged to the upper class, then she may have been personally acquainted with Rav Nahman. Moreover, she probably knew of his expertise in financial laws[3] as well as his family connection to the Exilarch.[4] Hence, she would not hesitate to appeal to Rav Nahman. If she was an ordinary woman, then her decision to appeal to Rav Nahman may have been coincidental, or his aforesaid financial knowledge may have influenced her. In any case, her decision to petition this rabbi may indicate that women in Jewish society were involved and knowledgeable as to who held power in the male establishment.

3. Rav Nahman’s reaction: Rav Nahman does not directly answer the old woman’s question. At first he pays no attention to it. Subsequently, he explains to the other rabbis in his presence (but not to her) why he ignored her. Originally the gemara may have just stated “she can claim only the cost of the wood” and the author of the story may have added his personal feeling that “she is a loud woman” (פעיתא).

4. The old woman’s assertive character: In mket 7:6, Rabbi Tarfon adds a “loud woman” (אישה קולנית) to a list of those who transgress the Jewish religion. Stating that such a woman acts loosely, Rabbi Tarfon rules that she is to be divorced without a ketubbah (marriage contract):

The punishment Rabbi Tarfon allots to a “loud woman” is rather puzzling since, according to the Mishnah and the parallel Tosefta (tKet 7:7), such a woman merely speaks loudly or shouts. A statement by Shmu’el in bKet 72b provides a totally different understanding of this concept. He describes a “loud woman” as: “one who speaks aloud on sexual intercourse” משמעת קולה על עיסקי תשמיש.

The continuation of the sugya cites a baraita defining a loud woman as one “whose voice during her intercourse in one court can be heard in another” משמשת בחצר זו ונשמע קולה בחצר אחרת. However, the gemara argues that such a woman belongs to the category of women with blemishes, who are divorced without a ketubbah, and not to that of the category of women who transgress Jewish custom. However, if we assume that Rav Nahman’s Aramaic פעיתא in our sugya is synonymous with the Hebrew קולנית than it is unlikely that he would describe an old woman with a word that has sexual connotations.

Why did Rav Nahman treat this old woman in such an unfair and impolite manner? Perhaps he thought her request was unwarranted since, according to existing halakhah, a thief only has to pay compensation for the cost of the original wood. Alternatively, bringing a charge of theft against the Exilarch and his family might have been viewed as dangerous. Or perhaps he was angry at her, since the Exilarch was his relative. Finally, he might have behaved disrespectfully because she was an old woman and did not belong to the elite circle of sages. The contrast between the two disputing parties is emphasized by the gemara’s choice of words, the old woman’s distress is emphasized by the use of the word “cried out” while the phrase “took no notice” highlights the indifference of Rav Nahman.

A tradition in bBB 9b also employs the same word pair. It tells of Rav Ahadboi ben Abba’s mother who came to Rav Sheshet to request mercy for her son who lost his speech and forgot his learning:

This story also depicts a very emotional scene. And unlike Rav Nahman, in this case Rav Sheshet relented and showed empathy for the mother’s feelings. In contrast to these two cases, in the eighteen times that the verb צווח is used in the Bavli with men as its subject, it never depicts a man talking to a judge.

Rav Nahman does not refute the old woman’s claim that people close to the Exilarch robbed her. Moreover, it is surprising that she has the courage to complain about people in such a high position, and Rav Nahman may have been angry at her because he was afraid of a confrontation with the Exilarch. Thus, there is no proof that her claim to justice is based on a false presumption, and she is portrayed as showing more courage than the judge she confronts. Still the author of the story identifies her as a hysterical old woman, and even ridicules her.

To conclude, we cannot ascertain whether the main protagonist of this story was an exceptional woman or whether women dared to claim their rights in court. Nevertheless, the narrative presents a woman who can be understood as both bothersome and courageous enough to sue the Exilarch. Although there is no conclusive evidence, the judge’s apprehensions or anger may be connected to the complainant’s gender. The literary style emphasizes gender stereotypes. It presents the woman as emotional, loud and making what Rav Nahman considers much ado about nothing.

As we saw above (Bavli 2/7. bSukkah 28a-b), according to the halakhah in the Bavli, based on rulings found in the midrashei halakhah of the school of Rabbi Yishma‘el (MekhY mishpatim, neziqin 6; SifNum 2) men and women are completely equal with respect to punishments meted out. One form of this tradition, found in bQid 35a, also implies that women can bring a lawsuit or be prosecuted like men:

Yet did women really have a status equal to that of men in court? The divergent opinions attributed to Rabbi Me’ir and Rabbi Eli‘ezer in bKet 74b and bGit 46b on this matter reveal what might have been accepted in the tannaitic period. According to Rabbi Me’ir, אדם רוצה שתתבזה אשתו בבית דין (a man wants his wife to be humiliated in the rabbinical court) while Rabbi Eli‘ezer believed that אין אדם רוצה שתתבזה אשתו בבית דין (a man does not want his wife to be humiliated in the rabbinical court). One should be cautious about these opinions as they were not stated directly by the tannaim but rather attributed to them by the gemara, and are therefore a later interpretations of the earlier rabbis’ intentions. Still they do demonstrate that women were a presence in rabbinical courts even if it was considered humiliating. A statement by Rava shows that this chauvinistic approach was also prevalent in the amoraic period:

According to accounts in the Bavli, women usually appeared in rabbinical courts with confidence and were unafraid. Several even demonstrated legal expertise. Moreover, an examination of all the stories concerning women who brought a court case before Rav Nahman and his disciple Rava reveal no explicit evidence that gender influenced the judge’s behavior or verdict. We can therefore conclude that in the talmudic period women were not absent from the legal arena, although we cannot determine whether they were the subject of any discrimination or preference.[1]