Yerushalmi Ketubot 13:7 ירושלמי כתובות י״ג:ז׳

MISHNAH: If somebody went overseas and lost the way to his field¹⁰¹He left for a long time and left his field untended. In the meantime, the neighbors ploughed their field and in time incorporated the boundary strip by which the farmer reached his field into their fields. Upon his return, he did not find any witnesses who could testify to where his access path had been located., Admon says, he shall go the shortest way¹⁰²Since it is obvious that there had been an access path. but the Sages say, he has to buy a right of access for a hunded minas¹⁰³Since “the burden of proof is on the claimant”, if he wants to take away a strip of land from any of the current owners, he must prove his case. or fly through the air.

HALAKHAH: “If somebody went overseas,” etc. Rebbi Yose ben Ḥanina said, if he sues with reasons¹⁰⁴Admon gives the returnee a right of ingress if he can proof that he had a way and only its location is in doubt. The Sages require him to buy his right of way even if he can prove that he had one, as long as he cannot locate it.. This means, only if four [owners] surround him¹⁰⁵In his interpretation, the returnee cannot reclaim his lost right of way if he cannot be sure from whom to claim. R. Yose ben Ḥanina would give him a right-of-way if all four adjacent fields belonged to the same person; in that case, the proof that a right-of-way existed should be sufficient.. Samuel says, even if one surrounds him on all sides¹⁰⁶As the Babli explains, Samuel agrees that the single owner of the four surrounding fields must give the returnee access to his field if he already had been the owner when the returnee left, since then certainly the owner of the surrounding fields took the lost path illegally. But if there were several owners when the returnee left, the current owner can claim that the returnee’s suit must be directed against that prior owner who had taken over his earlier path, not against the buyer. If it is not known who in that case was the owner who incorporated the returnee’s right-of-way into his property, the returnee cannot identify that owner, and loses his claim. The Babli, 109b, presents similar arguments in the name of other authors.. Joshua’s stipulation¹⁰⁶As the Babli explains, Samuel agrees that the single owner of the four surrounding fields must give the returnee access to his field if he already had been the owner when the returnee left, since then certainly the owner of the surrounding fields took the lost path illegally. But if there were several owners when the returnee left, the current owner can claim that the returnee’s suit must be directed against that prior owner who had taken over his earlier path, not against the buyer. If it is not known who in that case was the owner who incorporated the returnee’s right-of-way into his property, the returnee cannot identify that owner, and loses his claim. The Babli, 109b, presents similar arguments in the name of other authors.! “If he was lost in vineyards or fields, he crosses¹⁰⁷One of the meanings of Arabic قدَّ. If somebody is lost in vegetation, he may cross growing fields and orchards until he regains his orientation. and leaves until he reaches a road to his house, even a plot full of vineyards, for this is one of the conditions under which Joshua distributed the Land to Israel.”¹⁰⁸If the person who lost his way can cross other peoples’ fields, why can the returnee whose path was lost not cross into his field? Joshua stated this to leave, maybe to enter? Joshua stipulated for a person, perhaps for his cow¹⁰⁹A path to the field is worthless if the field cannot be ploughed because the cattle to draw the plough cannot enter.? Rebbi Yose said, his cow usually returns; since a swarm of bees does not usually return, they treated it as if it were his body¹¹⁰The beekeeper can enter another person’s private domain to catch the swarm which left his hive; cf. 2:11, Notes 204–205..

¹¹¹In a slightly different formulation, this paragraph is also in Baba batra 4:2. Rebbi Jeremiah said, both Admon and Rebbi Aqiba said the same thing, as we have stated there¹¹²Mishnah Baba batra 4:2. The Mishnah belongs to a series of statements about commercial contracts. If somebody sold cisterns in his backyard to a third party, R. Aqiba holds that nobody buys anything which he cannot use; therefore, it is understood that the seller, by offering the cisterns for sale, did also offer access to them. But the Sages hold that people also buy real estate for speculation and, therefore, the sale covers only what is explicitly stated in the sales contract and nothing more.: “If he sold them to another person, Rebbi Aqiba said, he does not have to buy access, but the Sages say, he has to buy access.” He had not heard that Rebbi Hila said, Rebbi Yasa in the name of Rebbi Joḥanan: They disagree when nothing was mentioned¹¹³The sales contract does not mention access.. Where do we hold? If it is obvious that access was included¹¹⁴If the right of access to the property was mentioned in the contract., everybody agrees that he does not have to pay for access. If it is obvious that access was not included¹¹⁵It is not necessary that access was excluded, it suffices if the contract states that only cisterns are sold., everybody agrees that he has to pay for access. But we must hold that nothing was mentioned. Then Rebbi Aqiba said, he does not have to buy access, but the rabbis say, he has to buy access. But in the case here, even while it is clear that he had access, everybody¹¹⁶This is not everybody; everybody except Admon. The question in Ketubot is not one of interpretation of commercial contracts but of enforcing a claim if it is not known against whom the claim could be enforced. agrees that he has to pay for access.