Sleep in the Tosefta II: Nezikin

April 27, 2020 0 By admin

What’s Similar
Of the three occurrences of sleep in Tosefta Seder Nezikin is similar to what we see in the Mishnah (mBava Batra 2.3):

באמת ביין התירו אבל לא ברפת בקר ואף על פי שממעיטו אינו אלא כמשביחו. ואם קדמה חנות ורפת הבקר את האוצר אין יכול למחות בידו ולומר לו איני יכול לישן לא מקול הפטיש ולא מקול הרחיים ולא מפני ריח רע ולא מקול התינוקות1

In truth, they permitted a wine shop, but not a cowshed. And even though they decrease, it does not improve it. And if a store or shed preceded the storage, one is not able to protest and said to him, “I am unable to sleep, neither from the sound of the hammer, nor from the sound of the oven, nor from the foul smell, nor from the sound of infants.” (tBava Batra 1.4)

In many ways, this text is similar to what we see in the Mishnah, although there are some noticeable differences, including the aspect of decreasing/improving. Also new is the idea of the store or shed already existing within the courtyard, preventing someone from moving into the courtyard and complaining. Also new is the complaint of a foul smell, which is not an auditory complaint. However, not here is the person who crafts his wares for sale in the marketplace.

What’s New
There are two texts here that are not in the Mishnah, both of which are in Bava Kamma, which are

היה אדם ישן בתוכן ודלק אפילו שוגג פטור מפני שנדון בנפשו2

One who was sleeping inside of it and it caught fire – even accidentally, is exempt, since he is judged upon his life. (tBava Kamma 6.24)

and

הגונב כיסו של חבירו והחזירו לו כשהוא ישן וניעור והרי הכיס בידו אם מכיר את שלו פטור ואם לאו חייב3

One who steals his fellow’s purse, yet returns it to him while he is asleep, waking up and finding his purse in his hand – if he recognizes it that it’s his – the thief is exempt, but if he does not recognize it, he is culpable. (tBava Kamma 10.36)

The sleeper in a building that caught fire’s exemption is seemingly on account of his being vulnerable to death within the burning building.
In the case of the sleeper who wakes up to find his missing stolen purse in his hand is intriguing, although the focus on sleep is more about the person’s lack of awareness at the time of it being given to him.

What’s Absent
There are several texts in the corresponding Mishnah that are not in the Tosefta: a person can always cause damage, whether awake or asleep (mBava Kamma 2.6), being exempt from inflicting indignity (mBava Kamma 8.1), swearing off sleep (mShevuot 3.5), and wine and sleep being good for the wicked and the world and bad for the righteous and the world (mSanhedrin 8.5). Not sure what to do with this.

Conclusion
In sum, there

Notes:
1. ed. Lieberman, 398.
2. ed. Lieberman, 27.
3. ed. Lieberman, ?