Ohalos, Chapter 17, Mishnah 3. Our chapter has been dealing with the field known as a beis hapras: a field in which a kever was plowed over, so that Chazal declared the surrounding area tamei out of concern that the plow dragged bones through the soil. Until now we have been learning how strict that decree is. This mishnah turns the coin over and lists a whole series of cases in which, surprisingly, no beis hapras is created at all.
Plowing Through a Pit of Meisim
The mishnah opens: "Hachoreish es hameelo timya oh es tziras ha'atzamos". The first case is a person who plows through a ditch that was filled with meisim, one lying upon another. The second is a field with a heap of bones in it, and he plowed straight through the pile.
What is this unusual word timya? The Bartenura explains that the phrase means "full of timya," and that timya in Aramaic refers to the bones of a meis. So the mishnah is describing something far worse than a single grave: a pit crowded with bodies, or a heap of bones scattered in the field, and a plow going right through it.
One would think that here of all places we should be at our strictest. Until now we spoke of a single kever, and Chazal were exceedingly stringent. Here there are many meisim, and yet the halachah is that no beis hapras is created. Why?
The Bartenura answers with a fundamental principle. Beis hapras is a gezeirah d'rabbanan. Chazal legislated for the ordinary situation: a lone kever happened to be in a field and a person plowed over it. But that a man should plow straight into a ditch packed with meisim, or through a visible pile of bones, is simply not something that happens. Chazal did not enact gezeiros for cases that are not common.
But one might push back: how frequently does anyone plow over a grave either? The Mishnah Acharonah responds that such a mishap is quite realistic. A man notices the kever, means to guide the blade around it, and inadvertently clips its edge. That scenario is easy to picture. Steering a plow into a trench packed with bodies, however, belongs to another category entirely. Here we meet a principle that surfaces throughout the Gemara: a rabbinic decree was legislated only for a situation that is shechiach, one that comes up with regularity.
A Field Whose Kever Was Lost
The mishnah continues with a field "she'avad kever b'sochah": we know that somewhere in this field there is a kever, but nobody knows where. A person plowed the field, and still no beis hapras is created.
The Bartenura explains that this is a classic sfeik sfeika, a double doubt. First doubt: since we do not know where the kever lies, who says he even plowed over it? And even granting that he did, there is a second doubt: we never said with certainty that the plow spreads the bones, it is only a possibility. Between the two, we are not choshesh.
A Kever Discovered Afterward
The next case: a man plowed his field, and only afterward "shenimtza ba kever", a grave turned up in it. Again, no beis hapras results. The explanation is that beis hapras functions as a knas, and Chazal levied that penalty solely against someone who was aware of the grave when he plowed and plowed regardless. Our man completed his work in innocence, and only later did a neighbor mention to him that a burial site had been in that ground all along. He had never suspected it. Where there is no negligence, there is no penalty.
Plowing a Field That Is Not His
The mishnah adds: "hachoreish es she'eino shelo", one who plows a kever in a field that does not belong to him. Chazal did not set up a penalty whereby one man's misdeed punishes another man's field. And likewise, "v'chein nochri shecharash", a non-Jew who plowed over a kever. A knas is not applicable to him. In all of these cases, "eino oseh osah beis hapras".
Several of the meforshim spell out the logic: what would a penalty against a nochri even accomplish? You announce to him that his land now carries the status of beis hapras, and the announcement means nothing to him. He is entirely indifferent to the designation, so the sanction has no bite.
The Proof From Kusim
How do we know that a non-Jew is not subject to this knas? Because the halachah is ein beis hapras l'Kusim. If even a Kusi does not create a beis hapras, then certainly one who has no connection whatsoever to Klal Yisroel does not.
And who were the Kusim? Their name comes up in nearly every masechta. They were a nation that originated in the city of Kusa and ended up settled in Eretz Yisroel, not of their own initiative but by deportation at the hands of the Assyrian monarch. He drove out the Aseres Hashvatim and moved this nation into their territory, in keeping with the standard policy of conquerors: keep every population feeling foreign on the soil it occupies, and it will have no base from which to revolt. The Kusim behaved improperly, and lions came and preyed upon them. That prompted them to accept Judaism, though how genuine their giyur really was remained an open question, and complications concerning the Kusim persisted for generations. At any rate, since a Kusi produces no beis hapras, a nochri surely produces none.
The Underlying Rule
Underlying the case of plowing someone else's land is a broad rule we have met previously: no person has the power to impose a prohibition upon property that is not his. I cannot reach into your possessions and render your object assur.
With regard to beis hapras this holds even for people who have a genuine connection to the field. A partner cannot create a beis hapras in the shared field. Neither can a worker who receives a share of the produce. Even an apotropus, appointed to manage a field on behalf of a yasom, cannot do so. His position does not empower him to cause a loss to another person's property.
The Rambam adds a fascinating point. If a man plows his own field and his friend's field in a single continuous stroke, his own field becomes a beis hapras, while his friend's field does not.
Reviewing the Mishnah
Ironically, plowing over a single kever creates a beis hapras, while the more extreme cases do not:
- Plowing straight into a trench crowded with bodies, or through a mound of bones: no beis hapras, since such a scene is not the ordinary course of events, and the Sages decreed only for what ordinarily occurs.
- Plowing a field whose grave's location has been forgotten: no beis hapras, thanks to the double doubt. Possibly the blade never passed over that spot at all, and should it have, possibly nothing was dragged.
- Plowing a field where a grave came to light only later: no beis hapras, since the man was unaware, and the penalty targets one who ought to have exercised greater caution. It is not contingent on bones having actually been scattered.
- Plowing over a grave in land belonging to someone else: no penalty, since nobody can forbid what is not his. So too a partner, a laborer paid with a portion of the crop, and an apotropus.
- A nochri who plowed: no penalty, derived from the ruling that even a Kusi produces no beis hapras.
So the mishnah teaches us not only the halachos of beis hapras, but the character of the enactment itself: a rabbinic penalty, applied only where the case is common and only to the one who could and should have been more careful.