Can one use a ma li l’shaker claim against a chazaka, as in the case where a creditor demands payment after the date of the loan was already due and the borrower claims that they returned a loan before loan’s due date? Do we believe the borrower since a better claim could have been made (that he/she paid back the loan on time) or is this not accepted since there is a chazaka, assumption that people do not repay loans before the due date? Three tannaitic sources are brought, two of them from our Mishna, to try to answer the question, but all attempts are rejected. If a dividing wall in a courtyard between two neighbors fell and one only wanted to rebuild to a height of four cubits and the other wanted it higher, one cannot force the other to share in the cost of the higher part of the wall. But if the neighbor who did not want to pay for the higher wall built a wall in their courtyard opposite the other at a higher height, indicating they want to connect the walls with a ceiling, they need to share the original wall’s cost. If the wall they built is shorter than the dividing wall (but above four cubits) or its length is shorter and only some of it is opposite the other wall, do they need to share the cost of the entire wall or only the part they will use? Rav Huna and Rav Nachman have different opinions on this issue. Although, there are particular cases where each side agrees with the other’s position. Rav Nachman and Rav Yosef also discuss different situations where one can assume or not assume that a neighbor agreed to permit usage of their wall to their neighbor. For example, if one permitted one’s neighbor to rest small beams on their wall (did not protest when the neighbor did that), does that mean they also would permit larger beams? If one rents a room in a large house, what other parts of the house can the renter use besides the room? If two neighbors live opposite each other, each is required to build a fence for the length of half their roof (each builds it on the half opposite the exposed half of the neighbor) to block the ability of each one to see into the other’s roof. Why is there a concern for neighbors looking in and not for people in the public domain looking in? What are the laws when a roof and a courtyard are at the same level opposite each other?
Bava Batra 6
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Masechet Bava Batra is sponsored by Lori Stark in loving memory of her mother in law, Sara Shapiro z”l and her father Nehemiah Sosewitz z”l.
Bava Batra 6
אוֹ דִילְמָא, בִּמְקוֹם חֲזָקָה – לָא אָמְרִינַן ״מַה לִּי לְשַׁקֵּר״? תָּא שְׁמַע: בְּחֶזְקַת שֶׁנָּתַן, עַד שֶׁיָּבִיא רְאָיָה שֶׁלֹּא נָתַן.
Or perhaps where there is a presumption against a person’s claim, we do not say that the borrower can claim: Why would I lie? The Gemara suggests: Come and hear a proof from the mishna: If after the wall was built one of the neighbors claims he alone constructed it and the other did not participate in its building, the latter is nevertheless presumed to have given his share of the money, unless the claimant brings proof that the other did not give his share.
הֵיכִי דָמֵי? אִילֵּימָא שֶׁתְּבָעוֹ לְאַחַר זְמַן, וְאָמַר לוֹ: ״פְּרַעְתִּיךָ בִּזְמַנִּי״, פְּשִׁיטָא! אֶלָּא לָאו דַּאֲמַר לֵיהּ: ״פְּרַעְתִּיךָ בְּתוֹךְ זְמַנִּי״? אַלְמָא אֲפִילּוּ בִּמְקוֹם חֲזָקָה, אָמְרִינַן ״מַה לִּי לְשַׁקֵּר״! שָׁאנֵי הָכָא, דְּכׇל שָׂפָא וְשָׂפָא זִמְנֵיהּ הוּא.
The Gemara clarifies the matter: What are the circumstances of the case? If we say that one partner demanded that the other party pay the money after the time that the payment became due, i.e., after the wall was rebuilt, and the other partner said to him: I paid you at the time that the payment became due, it is obvious that he is presumed to have given him the money. Rather, is it not a case where he said to him: I paid you within the time, i.e., before the payment became due? Apparently, even where there is a presumption against a person’s claim, we say that the defendant can claim: Why would I lie? The Gemara rejects this proof: Here it is different, because the time to pay is upon the completion of each and every row. Therefore, it is as if he said: I paid you at the time that the payment became due.
תָּא שְׁמַע: מֵאַרְבַּע אַמּוֹת וּלְמַעְלָה – אֵין מְחַיְּיבִין אוֹתוֹ. סָמַךְ לוֹ כּוֹתֶל אַחֵר כּוּ׳, עַד שֶׁיָּבִיא רְאָיָה שֶׁנָּתַן.
The Gemara suggests: Come and hear another proof from the continuation of the mishna. The court does not obligate the reluctant neighbor to contribute to the building of the part of the wall that is above four cubits. But if the reluctant neighbor built another wall close to the wall that was built higher than four cubits, in order to set a roof over the room that was thereby created, the court imposes upon him the responsibility to pay his share for all of the rebuilt wall, even though he has not yet set a roof over it. If the builder of the first wall later claims that he did not receive payment from his neighbor, the neighbor is presumed not to have given his share of the money, unless he brings proof that he did in fact give money for the building of the wall.
הֵיכִי דָמֵי? אִילֵּימָא שֶׁתְּבָעוֹ לְאַחַר זְמַנּוֹ, וְאָמַר לוֹ: ״פְּרַעְתִּיךָ בִּזְמַנִּי״, אַמַּאי לָא? אֶלָּא לָאו דְּאָמַר: ״פְּרַעְתִּיךָ בְּתוֹךְ זְמַנִּי״? אַלְמָא בִּמְקוֹם חֲזָקָה לָא אָמְרִינַן ״מַה לִּי לְשַׁקֵּר״! שָׁאנֵי הָכָא, דְּאָמַר: מִי יֵימַר דִּמְחַיְּיבִי לִי רַבָּנַן?
The Gemara clarifies: What are the circumstances of the case? If we say that one partner demanded that the other party pay the money after the time that the payment became due, and he, the latter, said to him: I paid you at the time that the payment became due, why is he not deemed credible? Rather, is it not that he said: I paid you within the time, before the payment became due? And with regard to this case, the mishna states that he is not deemed credible. Apparently, where there is a presumption against a person’s claim, we do not say that the defendant can claim: Why would I lie? The Gemara rejects this proof: Here it is different, since the reluctant neighbor says: Who says that the Rabbis will obligate me to pay for this additional part of the wall? In such a case he certainly does not pay before the payment becomes due. The mishna does not provide a proof one way or the other.
אֲמַר לֵיהּ רַב אַחָא בְּרֵיהּ דְּרָבָא לְרַב אָשֵׁי, תָּא שְׁמַע: ״מָנֶה לִי בְּיָדְךָ״, אָמַר לוֹ: ״הִין״. לְמָחָר אָמַר לוֹ: ״תְּנֵהוּ לִי״; אִם אָמַר: ״נְתַתִּיו לָךְ״ – פָּטוּר. ״אֵין לְךָ בְּיָדִי״ – חַיָּיב.
Rav Aḥa, son of Rava, said to Rav Ashi: Come and hear a proof from what is taught in a mishna (Shevuot 38b): If one said to another: I have one hundred dinars in your possession, and the other one said to him in the presence of witnesses: Yes, that is so; and the next day the lender said to the borrower: Give me the money that you owe me, the halakha is as follows: If the borrower said: I already gave it to you, he is exempt. But if he said: Nothing of yours is in my possession, he is liable.
מַאי, לָאו ״נְתַתִּיו לָךְ״ – דַּאֲמַר לֵיהּ: ״פְּרַעְתִּיךָ בִּזְמַנִּי״; ״אֵין לְךָ בְּיָדִי״ – דַּאֲמַר לֵיהּ: ״פְּרַעְתִּיךָ בְּתוֹךְ זְמַנִּי״? וְקָתָנֵי: חַיָּיב; אַלְמָא בִּמְקוֹם חֲזָקָה – לָא אָמְרִינַן ״מַה לִּי לְשַׁקֵּר״! לָא; מַאי ״אֵין לְךָ בְּיָדִי״ – ״לֹא הָיוּ דְבָרִים מֵעוֹלָם״, דְּאָמַר מָר: כׇּל הָאוֹמֵר ״לֹא לָוִיתִי״ – כְּאוֹמֵר ״לֹא פָּרַעְתִּי״ דָּמֵי.
The Gemara clarifies the matter: What, is it not that when he says: I already gave it to you, he is saying to him: I repaid you at the time that the payment became due; and when he says: Nothing of yours is in my possession, he is saying to him: I repaid you within the time, before the payment became due? And yet, the mishna teaches with regard to the latter case that he is liable. Apparently, where there is a presumption against a person’s claim, we do not say that the borrower can claim: Why would I lie? The Gemara rejects this proof: No, what does he mean when he says: Nothing of yours is in my possession? He is saying: There were never such matters; i.e., the purported loan never occurred. As the Master says: Anyone who says: I did not borrow, is treated as one who says: I did not repay, and since it is known by his own admission that he borrowed money, he is liable to pay.
סָמַךְ לוֹ כּוֹתֶל אַחֵר – מְגַלְגְּלִין עָלָיו אֶת הַכֹּל כּוּ׳. אָמַר רַב הוּנָא: סְמַךְ לְפַלְגָא, סְמַךְ לְכוּלַּהּ. וְרַב נַחְמָן אָמַר: לְמַאי דִּסְמַךְ – סְמַךְ, לְמַאי דְּלָא סְמַךְ – לָא סְמַךְ.
§ The mishna teaches: But if the reluctant neighbor built another wall close to the wall that was built higher than four cubits, in order to set a roof over the room that was thereby created, the court imposes upon him the responsibility to pay his share for all of the rebuilt wall. Rav Huna says: If he built another wall close to the first wall that was half the length or the height of the wall that was built higher than four cubits, it is as if he built it close to the height and length of the entire wall. Since he can easily add to his wall so that it will be equal in length or height to the wall the neighbor rebuilt, he must therefore pay half the cost of the entire rebuilt wall. And Rav Naḥman says: With regard to that which he built close, he built it close; with regard to that which he did not build close, he did not yet build it close. Accordingly, he is required to pay an additional share only for the part of the wall corresponding to the new wall he built.
וּמוֹדֶה רַב הוּנָא בְּקַרְנָא וְלוּפְתָּא. וּמוֹדֶה רַב נַחְמָן בְּאַפְרִיזָא, וּבִקְבַעְתָּא דִכְשׁוּרֵי.
And Rav Huna concedes with regard to an attachment to the corner of his house that he is not required to pay half the cost of the entire rebuilt wall. If he built the extension of his house in this manner, it is not considered as if he built it close to the entire wall, as it is unlikely that he will add to it. And Rav Naḥman concedes that in a case in which he places a heavy beam [be’afriza] on the wall that can support a roof, or carves into the wall indentations to fix beams in place, then even if he has not yet made use of the entire height of the wall, he has demonstrated his desire to do so in the future, and therefore he must pay half the cost of the entire wall.
אָמַר רַב הוּנָא: בֵּי כַוֵּי – לָא הָוֵי חֲזָקָה, וְאַף עַל גַּב דַּעֲבַד לֵיהּ הִימְלָטֵי. דְּאָמַר לֵיהּ, אָמֵינָא: לְכִי פָּיְיסַתְּ לִי, לָא לִיתְּרַע אֲשִׁיתַאי.
§ The mishna teaches that if the builder of the first wall later claims that he did not receive payment from his neighbor, the neighbor is presumed not to have given his share of the money, unless he brings proof that he did in fact give money for the building of the wall. Rav Huna says: Even if openings in the wall were built on the side facing the reluctant partner and these openings are suited to serve as beam rests, this does not create a presumption that the reluctant partner contributed his share to the building of the wall. And this is the halakha even if the builder of the wall made sills for these openings. As the builder of the wall can say to his neighbor: I said to myself that when you will appease me and pay me for the construction of the wall, you might want to attach beams to it, and I do not want the foundations of my wall to be damaged by your fashioning new openings in it. Therefore, from the outset, I built the wall with these openings.
אָמַר רַב נַחְמָן: אַחְזֵיק לְהוּרְדֵי – לָא אַחְזֵיק לִכְשׁוּרֵי, לִכְשׁוּרֵי – אַחְזֵיק לְהוּרְדֵי. רַב יוֹסֵף אָמַר: אַחְזֵיק לְהוּרְדֵי – אַחְזֵיק לִכְשׁוּרֵי.
With regard to the use of a neighbor’s wall, Rav Naḥman says: If one acquired the privilege to place thin beams on his neighbor’s wall, i.e., if one had used the wall in that manner in the past and the owner did not protest, so the one using it can maintain that he had acquired from the owner the right to do so, he has not acquired the privilege to place thick beams there. But if he acquired the privilege to place thick beams on the wall, he has acquired the privilege to place thin beams there. Rav Yosef says: If he acquired the privilege to place thin beams, he also has acquired the privilege to place thick beams.
אִיכָּא דְּאָמְרִי, אָמַר רַב נַחְמָן: אַחְזֵיק לְהוּרְדֵי – אַחְזֵיק לִכְשׁוּרֵי, לִכְשׁוּרֵי – אַחְזֵיק לְהוּרְדֵי.
There are those who say that Rav Naḥman says: If one acquired the privilege to place thin beams on his neighbor’s wall, he has acquired the privilege to place thick beams there; and if he acquired the privilege to place thick beams, he has acquired the privilege to place thin beams. This version of Rav Naḥman’s statement accords with the statement of Rav Yosef.
אָמַר רַב נַחְמָן: אַחְזֵיק לְנִטְפֵי – אַחְזֵיק לְשָׁפְכֵי, אַחְזֵיק לְשָׁפְכֵי – לָא אַחְזֵיק לְנִטְפֵי. וְרַב יוֹסֵף אָמַר: אֲפִילּוּ אַחְזֵיק לְשָׁפְכֵי – אַחְזֵיק לְנִטְפֵי.
With regard to a similar matter, Rav Naḥman says: If one acquired the privilege to let water drip from his roof into his neighbor’s courtyard, he has acquired the privilege to let the water pour there through a drainpipe. If the neighbor did not protest about the water dripping from the roof into his courtyard, he would certainly allow him to build a drainpipe, which would limit the water to a single place. But if he acquired the privilege to let the water pour through a drainpipe into his neighbor’s courtyard, he has not acquired the privilege to let water drip there from his roof. And Rav Yosef says: Even if he acquired the privilege to let water pour there through a drainpipe, he also has acquired the privilege to let water drip there from his roof.
אִיכָּא דְּאָמְרִי, אָמַר רַב נַחְמָן: אַחְזֵיק לְשָׁפְכֵי – אַחְזֵיק לְנִטְפֵי; לְנִטְפֵי – אַחְזֵיק לְשָׁפְכֵי, אֲבָל לִצְרִיפָא דְאוּרְבָּנֵי – לָא. רַב יוֹסֵף אָמַר: אֲפִילּוּ צְרִיפָא דְאוּרְבָּנֵי. עֲבַד רַב יוֹסֵף עוֹבָדָא בִּצְרִיפָא דְאוּרְבָּנֵי.
There are those who say that Rav Naḥman said: If one acquired the privilege to let water pour through a drainpipe into his neighbor’s courtyard, he has acquired the privilege to let water drip there from his roof; and if he acquired the privilege to let water drip from his roof into his neighbor’s courtyard, he has acquired the privilege to let water pour there through a drainpipe. But he has not acquired the privilege to let water drip from a hut whose roof is composed of willow branches into his neighbor’s courtyard. Rav Yosef said: He has acquired the privilege to let water drip there even from a hut whose roof is composed of willow branches. The Gemara comments: Rav Yosef performed an action, i.e., issued a practical ruling, with regard to a hut whose roof is composed of willow branches, allowing the neighbor to let water drip from there after he had acquired the privilege to use a drainpipe.
אָמַר רַב נַחְמָן אָמַר רַבָּה בַּר אֲבוּהּ: הַמַּשְׂכִּיר בַּיִת לַחֲבֵירוֹ
Rav Naḥman says that Rabba bar Avuh says: If one rents a room to another
בְּבִירָה גְּדוֹלָה, מִשְׁתַּמֵּשׁ בְּזִיזֶיהָ וּבִכְתָלֶיהָ עַד אַרְבַּע אַמּוֹת, וּבְעוֹבִי הַכּוֹתֶל – בִּמְקוֹם שֶׁנָּהֲגוּ, אֲבָל בְּתַרְבֵּץ אַפַּדְנֵי – לָא. וְרַב נַחְמָן דִּידֵיהּ אָמַר: אֲפִילּוּ בְּתַרְבֵּץ אַפַּדְנֵי, אֲבָל רְחָבָה שֶׁאֲחוֹרֵי הַבָּתִּים – לָא. וְרָבָא אָמַר: אֲפִילּוּ רְחָבָה שֶׁאֲחוֹרֵי הַבָּתִּים.
in a large building with many residences, the renter may make use of the building’s projections and of the cavities in its external walls up to a distance of four cubits from his room, and he may make use of the thickness of the wall in a place where it is customary to do so. But as for making use of the building’s front garden [betarbatz], he may not do so. And Rav Naḥman himself said: He may make use of even the building’s front garden. But he may not use the yard that is at the back of the house. And Rava said: He may use even the yard that is at the back of the house.
אָמַר רָבִינָא: הַאי כְּשׁוּרָא דִמְטַלַּלְתָּא, עַד תְּלָתִין יוֹמִין – לָא הָוֵי חֲזָקָה, בָּתַר תְּלָתִין יוֹמִין – הָוֵי חֲזָקָה. וְאִי סוּכָּה דְמִצְוָה הִיא, עַד שִׁבְעָה יוֹמִין – לָא הָוֵי חֲזָקָה, בָּתַר שִׁבְעָה יוֹמִין – הָוֵי חֲזָקָה. וְאִי חַבְּרֵיהּ בְּטִינָא – לְאַלְתַּר הָוֵי חֲזָקָה.
Apropos the use of a wall between neighbors, Ravina says: If one’s beam supporting a covering for shade was resting on his neighbor’s wall for up to thirty days, there is no acquired privilege for him to continue using it, since the neighbor can claim that he had assumed that the beam was there only temporarily and for that reason he did not protest. But after thirty days, there is an acquired privilege. And if it was for a sukka that was being used for the mitzva on the festival of Sukkot, for up to seven days there is no acquired privilege for him to continue using it, since it is assumed that it is there for the mitzva and that after the Festival it will be removed. But if after seven days the neighbor did not protest, there is an acquired privilege for him to continue using it. And if the one using the beam attached it with clay, there is immediately such an acquired privilege.
אָמַר אַבָּיֵי: שְׁנֵי בָתִּים בִּשְׁנֵי צִדֵּי רְשׁוּת הָרַבִּים – זֶה עוֹשֶׂה מַעֲקֶה לַחֲצִי גַגּוֹ, וְזֶה עוֹשֶׂה מַעֲקֶה לַחֲצִי גַגּוֹ – זֶה שֶׁלֹּא כְּנֶגֶד זֶה; וּמַעֲדִיף.
§ Abaye says: If there were two houses on two sides of a public domain, this one, the owner of one of the houses, must build a fence for half his roof, and that one, the owner of the other house, must build a fence for half his roof. They must position the fences so that one fence is not opposite the other fence, and each one must add to his fence a little beyond the midway point, so that each one should not be able to see the activity on the other’s roof.
מַאי אִירְיָא בִּרְשׁוּת הָרַבִּים? אֲפִילּוּ רְשׁוּת הַיָּחִיד נָמֵי! רְשׁוּת הָרַבִּים אִיצְטְרִיכָא לֵיהּ – מַהוּ דְּתֵימָא, נֵימָא לֵיהּ: סוֹף סוֹף הָא בָּעֵית לְאִצְטַנּוֹעֵי מִבְּנֵי רְשׁוּת הָרַבִּים;
The Gemara asks: Why discuss specifically the case of two houses on opposite sides of a public domain, considering that the same halakha should apply even if the two houses are separated by a private domain? The Gemara answers: It was necessary for Abaye to mention a public domain, lest you say that one neighbor can say to the other: Ultimately, you need to conceal yourself from people in the public domain. Since in any event you have to build a fence across your entire roof, you cannot compel me to build a fence on my roof.
קָא מַשְׁמַע לַן, דְּאָמַר לֵיהּ: רַבִּים – בִּימָמָא חָזוּ לִי, בְּלֵילְיָא לָא חָזוּ לִי; אַתְּ – בֵּין בִּימָמָא בֵּין בְּלֵילְיָא חָזֵית לִי. אִי נָמֵי, רַבִּים – כִּי קָאֵימְנָא חָזוּ לִי, כִּי יָתֵיבְנָא לָא חָזוּ לִי; אַתְּ חָזֵית לִי בֵּין כִּי קָאֵימְנָא בֵּין כִּי יָתֵיבְנָא. רַבִּים – כִּי מְעַיְּינוּ חָזוּ לִי, כִּי לָא מְעַיְּינוּ לָא חָזוּ לִי; אַתְּ – מִמֵּילָא נָמֵי חָזֵית לִי.
To counter this, Abaye teaches us that this is not so, because the second homeowner can say to the first in response: The public can see me only during the day, when pedestrians pass by, but they cannot see me at night. You, by contrast, can see me both during the day and at night. Alternatively, he can say: The public can see me from the street only when I am standing, but they cannot see me when I am sitting. You, by contrast, can see me both when I am standing and when I am sitting. And furthermore, the public can see me only when they look specifically at me, but they cannot see me when they do not look specifically at me, since the average pedestrian does not look up to see what is happening on the roofs. You, by contrast, can see me in any case, because you live opposite me.
אָמַר מָר: זֶה עוֹשֶׂה מַעֲקֶה לַחֲצִי גַגּוֹ, וְזֶה עוֹשֶׂה מַעֲקֶה לַחֲצִי גַגּוֹ – זֶה שֶׁלֹּא כְּנֶגֶד זֶה; וּמַעֲדִיף. פְּשִׁיטָא!
The Master, i.e., Abaye, said above: This one, the owner of one of the houses, must build a fence for half his roof, and that one, the owner of the other house, must build a fence for half his roof. They must position the fences so that one fence is not opposite the other fence, and each one must add to his fence a little beyond the midway point. The Gemara asks: Isn’t it obvious that each one must make a fence for half his roof?
לָא צְרִיכָא, דִּקְדֵים חַד מִנַּיְיהוּ וַעֲבַד. מַהוּ דְּתֵימָא, נֵימָא לֵיהּ אִידַּךְ: שְׁקוֹל אוּזִינְקָא וְעִבְדֵיהּ אַתְּ כּוּלֵּיהּ; קָא מַשְׁמַע לַן, דְּאָמַר לֵיהּ: אַתְּ מַאי טַעְמָא לָא עֲבַדְתְּ – מִשּׁוּם דְּמִיתְּרַע אֲשִׁיתָךְ; אֲנָא נָמֵי מִיתְּרַע לֵיהּ אֲשִׁיתַאי.
The Gemara answers: No, it is necessary in a case where one of them went ahead on his own and constructed a fence on half his roof, lest you say that the other can say to him: Take from me compensation for the expenditure [uzinka], and you build the entire fence, and in that way we will not invade one another’s privacy. Therefore, Abaye teaches us that the neighbor who built the fence for half his roof can say to him: What is the reason you do not want to build a fence? It is because the added weight will damage your house’s foundation. My foundation too will be damaged if I continue to build on my roof.
אָמַר רַב נַחְמָן אָמַר שְׁמוּאֵל: גַּג הַסָּמוּךְ לַחֲצַר חֲבֵירוֹ – עוֹשֶׂה לוֹ מַעֲקֶה גָּבוֹהַּ אַרְבַּע אַמּוֹת. אֲבָל בֵּין גַּג לְגַג – לָא. וְרַב נַחְמָן דִּידֵיהּ אָמַר: אֵינוֹ זָקוּק לְאַרְבַּע אַמּוֹת, אֲבָל זָקוּק לִמְחִיצַת עֲשָׂרָה.
Rav Naḥman says that Shmuel says: If one’s roof is adjacent to his neighbor’s courtyard, he must build a fence on the roof four cubits high, so that he will not be able to see into his neighbor’s courtyard, but he is not required to build a fence between one roof and another roof. And Rav Naḥman himself says: He is not required to build a fence four cubits high on the roof, but he is required to build a partition that is ten handbreadths high.
לְמַאי? אִי לְהֶיזֵּק רְאִיָּה – אַרְבַּע אַמּוֹת בָּעֵינַן! אִי לְנִתְפָּס עָלָיו כְּגַנָּב – בִּמְסִיפָס בְּעָלְמָא סַגִּיא! אִי לִגְדָיִים וּטְלָאִים – בִּכְדֵי שֶׁלֹּא יִזְדַּקֵּר בְּבַת רֹאשׁ סַגִּי! לְעוֹלָם לְנִתְפָּס עָלָיו כְּגַנָּב, בִּמְסִיפָס – מָצֵי מִשְׁתְּמִיט לֵיהּ, [אָמַר: מַמְצוֹרֵי קָמַמְצֵירְנָא], בִּמְחִיצַת עֲשָׂרָה – לָא מָצֵי מִשְׁתְּמִיט לֵיהּ.
The Gemara asks: For what purpose, according to Rav Naḥman, does the neighbor have to build such a partition? If it is to prevent damage caused by exposure to the sight of others, we require a partition of four cubits. If it is to catch the neighbor as a thief, i.e., to set a boundary between the two properties so that any trespass will be construed as attempted theft, a mere partition of pegs suffices. And if it is to prevent kid goats and lambs from crossing from one roof to the other, a low partition that is high enough so that the goat or lamb will not be able to leap headlong from one roof to the other suffices. The Gemara answers: Actually, it is built to catch the neighbor as a thief. With a partition of pegs he can give an excuse and say that he was merely stretching himself, but with a partition of ten handbreadths he cannot give such an excuse.
מֵיתִיבִי: אִם הָיָה חֲצֵרוֹ לְמַעְלָה מִגַּגּוֹ שֶׁל חֲבֵירוֹ – אֵין נִזְקָקִין לוֹ. מַאי, לָאו אֵין נִזְקָקִין לוֹ כְּלָל? לָא; אֵין נִזְקָקִין לְאַרְבַּע אַמּוֹת, אֲבָל נִזְקָקִין לִמְחִיצַת עֲשָׂרָה.
The Gemara raises an objection to the opinion of Rav Naḥman from a baraita: If his courtyard was higher than the other’s roof, he is not required to attend to it. What, is it not teaching that he is not required to attend to it at all, i.e., that he need not build any type of fence? The Gemara answers: No, it means that he is not required to attend to building a partition of four cubits, but he must attend to building a partition of ten handbreadths, as maintained by Rav Naḥman.
אִיתְּמַר: שְׁתֵּי חֲצֵרוֹת זוֹ לְמַעְלָה מִזּוֹ – אָמַר רַב הוּנָא: תַּחְתּוֹן בּוֹנֶה מִכְּנֶגְדּוֹ וְעוֹלֶה, וְעֶלְיוֹן בּוֹנֶה מִכְּנֶגְדּוֹ וְעוֹלֶה. וְרַב חִסְדָּא אָמַר: עֶלְיוֹן מְסַיֵּיעַ מִלְּמַטָּה וּבוֹנֶה.
It was stated that amora’im disagree about the following case: If there are two adjoining courtyards, one higher than the other, Rav Huna says that the owner of the lower courtyard builds the wall separating the courtyards from his level and upward, and the owner of the upper courtyard builds the wall from his level and upward. And Rav Ḥisda says: The owner of the upper courtyard assists the owner of the lower courtyard and builds from below, even including that part of the wall which is opposite the lower courtyard.
תַּנְיָא כְּווֹתֵיהּ דְּרַב חִסְדָּא: שְׁתֵּי חֲצֵרוֹת זוֹ לְמַעְלָה מִזּוֹ, לֹא יֹאמַר הָעֶלְיוֹן: ״הֲרֵינִי בּוֹנֶה מִכְּנֶגְדִּי וְעוֹלֶה״, אֶלָּא מְסַיֵּיעַ מִלְּמַטָּה וּבוֹנֶה. וְאִם הָיְתָה חֲצֵרוֹ לְמַעְלָה מִגַּגּוֹ שֶׁל חֲבֵירוֹ – אֵינוֹ זָקוּק לוֹ.
The Gemara notes that it is taught in a baraita in accordance with the opinion of Rav Ḥisda: If there were two adjoining courtyards, one higher than the other, the owner of the upper courtyard cannot say: I will build from my level and upward, but rather he assists the owner of the lower courtyard and builds from below. And if his courtyard is higher than the roof of his neighbor, he is not required to attend to it. The owner of the upper courtyard need not build a partition because people do not ordinarily use their roofs.
הָנְהוּ בֵּי תְרֵי דַּהֲווֹ דָּיְירִי, חַד הֲוָה דָּיֵיר עִילַּאי וְחַד הֲוָה דָּיֵיר תַּתַּאי. אִיתְּבַר תַּתַּאי. אֲמַר לֵיהּ תַּתַּאי לְעִילַּאי: ״תָּא וְנִבְנְיֵיהּ״. אֲמַר לֵיהּ: ״אֲנָא שַׁפִּיר קָא דָּאֵירְנָא״.
§ It is related that two people were living in a two-story building; one was living in the upper story, and one was living in the lower one. The lower story began to collapse, its walls sinking into the ground to the point that it was no longer fit for dwelling. The owner of the lower story said to the owner of the upper story: Come and let us demolish the whole building and rebuild it together. The owner of the upper story said to him: I am living comfortably and am under no obligation to rebuild your residence.
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Bava Batra 6
אוֹ דִילְמָא, בִּמְקוֹם חֲזָקָה – לָא אָמְרִינַן ״מַה לִּי לְשַׁקֵּר״? תָּא שְׁמַע: בְּחֶזְקַת שֶׁנָּתַן, עַד שֶׁיָּבִיא רְאָיָה שֶׁלֹּא נָתַן.
Or perhaps where there is a presumption against a person’s claim, we do not say that the borrower can claim: Why would I lie? The Gemara suggests: Come and hear a proof from the mishna: If after the wall was built one of the neighbors claims he alone constructed it and the other did not participate in its building, the latter is nevertheless presumed to have given his share of the money, unless the claimant brings proof that the other did not give his share.
הֵיכִי דָמֵי? אִילֵּימָא שֶׁתְּבָעוֹ לְאַחַר זְמַן, וְאָמַר לוֹ: ״פְּרַעְתִּיךָ בִּזְמַנִּי״, פְּשִׁיטָא! אֶלָּא לָאו דַּאֲמַר לֵיהּ: ״פְּרַעְתִּיךָ בְּתוֹךְ זְמַנִּי״? אַלְמָא אֲפִילּוּ בִּמְקוֹם חֲזָקָה, אָמְרִינַן ״מַה לִּי לְשַׁקֵּר״! שָׁאנֵי הָכָא, דְּכׇל שָׂפָא וְשָׂפָא זִמְנֵיהּ הוּא.
The Gemara clarifies the matter: What are the circumstances of the case? If we say that one partner demanded that the other party pay the money after the time that the payment became due, i.e., after the wall was rebuilt, and the other partner said to him: I paid you at the time that the payment became due, it is obvious that he is presumed to have given him the money. Rather, is it not a case where he said to him: I paid you within the time, i.e., before the payment became due? Apparently, even where there is a presumption against a person’s claim, we say that the defendant can claim: Why would I lie? The Gemara rejects this proof: Here it is different, because the time to pay is upon the completion of each and every row. Therefore, it is as if he said: I paid you at the time that the payment became due.
תָּא שְׁמַע: מֵאַרְבַּע אַמּוֹת וּלְמַעְלָה – אֵין מְחַיְּיבִין אוֹתוֹ. סָמַךְ לוֹ כּוֹתֶל אַחֵר כּוּ׳, עַד שֶׁיָּבִיא רְאָיָה שֶׁנָּתַן.
The Gemara suggests: Come and hear another proof from the continuation of the mishna. The court does not obligate the reluctant neighbor to contribute to the building of the part of the wall that is above four cubits. But if the reluctant neighbor built another wall close to the wall that was built higher than four cubits, in order to set a roof over the room that was thereby created, the court imposes upon him the responsibility to pay his share for all of the rebuilt wall, even though he has not yet set a roof over it. If the builder of the first wall later claims that he did not receive payment from his neighbor, the neighbor is presumed not to have given his share of the money, unless he brings proof that he did in fact give money for the building of the wall.
הֵיכִי דָמֵי? אִילֵּימָא שֶׁתְּבָעוֹ לְאַחַר זְמַנּוֹ, וְאָמַר לוֹ: ״פְּרַעְתִּיךָ בִּזְמַנִּי״, אַמַּאי לָא? אֶלָּא לָאו דְּאָמַר: ״פְּרַעְתִּיךָ בְּתוֹךְ זְמַנִּי״? אַלְמָא בִּמְקוֹם חֲזָקָה לָא אָמְרִינַן ״מַה לִּי לְשַׁקֵּר״! שָׁאנֵי הָכָא, דְּאָמַר: מִי יֵימַר דִּמְחַיְּיבִי לִי רַבָּנַן?
The Gemara clarifies: What are the circumstances of the case? If we say that one partner demanded that the other party pay the money after the time that the payment became due, and he, the latter, said to him: I paid you at the time that the payment became due, why is he not deemed credible? Rather, is it not that he said: I paid you within the time, before the payment became due? And with regard to this case, the mishna states that he is not deemed credible. Apparently, where there is a presumption against a person’s claim, we do not say that the defendant can claim: Why would I lie? The Gemara rejects this proof: Here it is different, since the reluctant neighbor says: Who says that the Rabbis will obligate me to pay for this additional part of the wall? In such a case he certainly does not pay before the payment becomes due. The mishna does not provide a proof one way or the other.
אֲמַר לֵיהּ רַב אַחָא בְּרֵיהּ דְּרָבָא לְרַב אָשֵׁי, תָּא שְׁמַע: ״מָנֶה לִי בְּיָדְךָ״, אָמַר לוֹ: ״הִין״. לְמָחָר אָמַר לוֹ: ״תְּנֵהוּ לִי״; אִם אָמַר: ״נְתַתִּיו לָךְ״ – פָּטוּר. ״אֵין לְךָ בְּיָדִי״ – חַיָּיב.
Rav Aḥa, son of Rava, said to Rav Ashi: Come and hear a proof from what is taught in a mishna (Shevuot 38b): If one said to another: I have one hundred dinars in your possession, and the other one said to him in the presence of witnesses: Yes, that is so; and the next day the lender said to the borrower: Give me the money that you owe me, the halakha is as follows: If the borrower said: I already gave it to you, he is exempt. But if he said: Nothing of yours is in my possession, he is liable.
מַאי, לָאו ״נְתַתִּיו לָךְ״ – דַּאֲמַר לֵיהּ: ״פְּרַעְתִּיךָ בִּזְמַנִּי״; ״אֵין לְךָ בְּיָדִי״ – דַּאֲמַר לֵיהּ: ״פְּרַעְתִּיךָ בְּתוֹךְ זְמַנִּי״? וְקָתָנֵי: חַיָּיב; אַלְמָא בִּמְקוֹם חֲזָקָה – לָא אָמְרִינַן ״מַה לִּי לְשַׁקֵּר״! לָא; מַאי ״אֵין לְךָ בְּיָדִי״ – ״לֹא הָיוּ דְבָרִים מֵעוֹלָם״, דְּאָמַר מָר: כׇּל הָאוֹמֵר ״לֹא לָוִיתִי״ – כְּאוֹמֵר ״לֹא פָּרַעְתִּי״ דָּמֵי.
The Gemara clarifies the matter: What, is it not that when he says: I already gave it to you, he is saying to him: I repaid you at the time that the payment became due; and when he says: Nothing of yours is in my possession, he is saying to him: I repaid you within the time, before the payment became due? And yet, the mishna teaches with regard to the latter case that he is liable. Apparently, where there is a presumption against a person’s claim, we do not say that the borrower can claim: Why would I lie? The Gemara rejects this proof: No, what does he mean when he says: Nothing of yours is in my possession? He is saying: There were never such matters; i.e., the purported loan never occurred. As the Master says: Anyone who says: I did not borrow, is treated as one who says: I did not repay, and since it is known by his own admission that he borrowed money, he is liable to pay.
סָמַךְ לוֹ כּוֹתֶל אַחֵר – מְגַלְגְּלִין עָלָיו אֶת הַכֹּל כּוּ׳. אָמַר רַב הוּנָא: סְמַךְ לְפַלְגָא, סְמַךְ לְכוּלַּהּ. וְרַב נַחְמָן אָמַר: לְמַאי דִּסְמַךְ – סְמַךְ, לְמַאי דְּלָא סְמַךְ – לָא סְמַךְ.
§ The mishna teaches: But if the reluctant neighbor built another wall close to the wall that was built higher than four cubits, in order to set a roof over the room that was thereby created, the court imposes upon him the responsibility to pay his share for all of the rebuilt wall. Rav Huna says: If he built another wall close to the first wall that was half the length or the height of the wall that was built higher than four cubits, it is as if he built it close to the height and length of the entire wall. Since he can easily add to his wall so that it will be equal in length or height to the wall the neighbor rebuilt, he must therefore pay half the cost of the entire rebuilt wall. And Rav Naḥman says: With regard to that which he built close, he built it close; with regard to that which he did not build close, he did not yet build it close. Accordingly, he is required to pay an additional share only for the part of the wall corresponding to the new wall he built.
וּמוֹדֶה רַב הוּנָא בְּקַרְנָא וְלוּפְתָּא. וּמוֹדֶה רַב נַחְמָן בְּאַפְרִיזָא, וּבִקְבַעְתָּא דִכְשׁוּרֵי.
And Rav Huna concedes with regard to an attachment to the corner of his house that he is not required to pay half the cost of the entire rebuilt wall. If he built the extension of his house in this manner, it is not considered as if he built it close to the entire wall, as it is unlikely that he will add to it. And Rav Naḥman concedes that in a case in which he places a heavy beam [be’afriza] on the wall that can support a roof, or carves into the wall indentations to fix beams in place, then even if he has not yet made use of the entire height of the wall, he has demonstrated his desire to do so in the future, and therefore he must pay half the cost of the entire wall.
אָמַר רַב הוּנָא: בֵּי כַוֵּי – לָא הָוֵי חֲזָקָה, וְאַף עַל גַּב דַּעֲבַד לֵיהּ הִימְלָטֵי. דְּאָמַר לֵיהּ, אָמֵינָא: לְכִי פָּיְיסַתְּ לִי, לָא לִיתְּרַע אֲשִׁיתַאי.
§ The mishna teaches that if the builder of the first wall later claims that he did not receive payment from his neighbor, the neighbor is presumed not to have given his share of the money, unless he brings proof that he did in fact give money for the building of the wall. Rav Huna says: Even if openings in the wall were built on the side facing the reluctant partner and these openings are suited to serve as beam rests, this does not create a presumption that the reluctant partner contributed his share to the building of the wall. And this is the halakha even if the builder of the wall made sills for these openings. As the builder of the wall can say to his neighbor: I said to myself that when you will appease me and pay me for the construction of the wall, you might want to attach beams to it, and I do not want the foundations of my wall to be damaged by your fashioning new openings in it. Therefore, from the outset, I built the wall with these openings.
אָמַר רַב נַחְמָן: אַחְזֵיק לְהוּרְדֵי – לָא אַחְזֵיק לִכְשׁוּרֵי, לִכְשׁוּרֵי – אַחְזֵיק לְהוּרְדֵי. רַב יוֹסֵף אָמַר: אַחְזֵיק לְהוּרְדֵי – אַחְזֵיק לִכְשׁוּרֵי.
With regard to the use of a neighbor’s wall, Rav Naḥman says: If one acquired the privilege to place thin beams on his neighbor’s wall, i.e., if one had used the wall in that manner in the past and the owner did not protest, so the one using it can maintain that he had acquired from the owner the right to do so, he has not acquired the privilege to place thick beams there. But if he acquired the privilege to place thick beams on the wall, he has acquired the privilege to place thin beams there. Rav Yosef says: If he acquired the privilege to place thin beams, he also has acquired the privilege to place thick beams.
אִיכָּא דְּאָמְרִי, אָמַר רַב נַחְמָן: אַחְזֵיק לְהוּרְדֵי – אַחְזֵיק לִכְשׁוּרֵי, לִכְשׁוּרֵי – אַחְזֵיק לְהוּרְדֵי.
There are those who say that Rav Naḥman says: If one acquired the privilege to place thin beams on his neighbor’s wall, he has acquired the privilege to place thick beams there; and if he acquired the privilege to place thick beams, he has acquired the privilege to place thin beams. This version of Rav Naḥman’s statement accords with the statement of Rav Yosef.
אָמַר רַב נַחְמָן: אַחְזֵיק לְנִטְפֵי – אַחְזֵיק לְשָׁפְכֵי, אַחְזֵיק לְשָׁפְכֵי – לָא אַחְזֵיק לְנִטְפֵי. וְרַב יוֹסֵף אָמַר: אֲפִילּוּ אַחְזֵיק לְשָׁפְכֵי – אַחְזֵיק לְנִטְפֵי.
With regard to a similar matter, Rav Naḥman says: If one acquired the privilege to let water drip from his roof into his neighbor’s courtyard, he has acquired the privilege to let the water pour there through a drainpipe. If the neighbor did not protest about the water dripping from the roof into his courtyard, he would certainly allow him to build a drainpipe, which would limit the water to a single place. But if he acquired the privilege to let the water pour through a drainpipe into his neighbor’s courtyard, he has not acquired the privilege to let water drip there from his roof. And Rav Yosef says: Even if he acquired the privilege to let water pour there through a drainpipe, he also has acquired the privilege to let water drip there from his roof.
אִיכָּא דְּאָמְרִי, אָמַר רַב נַחְמָן: אַחְזֵיק לְשָׁפְכֵי – אַחְזֵיק לְנִטְפֵי; לְנִטְפֵי – אַחְזֵיק לְשָׁפְכֵי, אֲבָל לִצְרִיפָא דְאוּרְבָּנֵי – לָא. רַב יוֹסֵף אָמַר: אֲפִילּוּ צְרִיפָא דְאוּרְבָּנֵי. עֲבַד רַב יוֹסֵף עוֹבָדָא בִּצְרִיפָא דְאוּרְבָּנֵי.
There are those who say that Rav Naḥman said: If one acquired the privilege to let water pour through a drainpipe into his neighbor’s courtyard, he has acquired the privilege to let water drip there from his roof; and if he acquired the privilege to let water drip from his roof into his neighbor’s courtyard, he has acquired the privilege to let water pour there through a drainpipe. But he has not acquired the privilege to let water drip from a hut whose roof is composed of willow branches into his neighbor’s courtyard. Rav Yosef said: He has acquired the privilege to let water drip there even from a hut whose roof is composed of willow branches. The Gemara comments: Rav Yosef performed an action, i.e., issued a practical ruling, with regard to a hut whose roof is composed of willow branches, allowing the neighbor to let water drip from there after he had acquired the privilege to use a drainpipe.
אָמַר רַב נַחְמָן אָמַר רַבָּה בַּר אֲבוּהּ: הַמַּשְׂכִּיר בַּיִת לַחֲבֵירוֹ
Rav Naḥman says that Rabba bar Avuh says: If one rents a room to another
בְּבִירָה גְּדוֹלָה, מִשְׁתַּמֵּשׁ בְּזִיזֶיהָ וּבִכְתָלֶיהָ עַד אַרְבַּע אַמּוֹת, וּבְעוֹבִי הַכּוֹתֶל – בִּמְקוֹם שֶׁנָּהֲגוּ, אֲבָל בְּתַרְבֵּץ אַפַּדְנֵי – לָא. וְרַב נַחְמָן דִּידֵיהּ אָמַר: אֲפִילּוּ בְּתַרְבֵּץ אַפַּדְנֵי, אֲבָל רְחָבָה שֶׁאֲחוֹרֵי הַבָּתִּים – לָא. וְרָבָא אָמַר: אֲפִילּוּ רְחָבָה שֶׁאֲחוֹרֵי הַבָּתִּים.
in a large building with many residences, the renter may make use of the building’s projections and of the cavities in its external walls up to a distance of four cubits from his room, and he may make use of the thickness of the wall in a place where it is customary to do so. But as for making use of the building’s front garden [betarbatz], he may not do so. And Rav Naḥman himself said: He may make use of even the building’s front garden. But he may not use the yard that is at the back of the house. And Rava said: He may use even the yard that is at the back of the house.
אָמַר רָבִינָא: הַאי כְּשׁוּרָא דִמְטַלַּלְתָּא, עַד תְּלָתִין יוֹמִין – לָא הָוֵי חֲזָקָה, בָּתַר תְּלָתִין יוֹמִין – הָוֵי חֲזָקָה. וְאִי סוּכָּה דְמִצְוָה הִיא, עַד שִׁבְעָה יוֹמִין – לָא הָוֵי חֲזָקָה, בָּתַר שִׁבְעָה יוֹמִין – הָוֵי חֲזָקָה. וְאִי חַבְּרֵיהּ בְּטִינָא – לְאַלְתַּר הָוֵי חֲזָקָה.
Apropos the use of a wall between neighbors, Ravina says: If one’s beam supporting a covering for shade was resting on his neighbor’s wall for up to thirty days, there is no acquired privilege for him to continue using it, since the neighbor can claim that he had assumed that the beam was there only temporarily and for that reason he did not protest. But after thirty days, there is an acquired privilege. And if it was for a sukka that was being used for the mitzva on the festival of Sukkot, for up to seven days there is no acquired privilege for him to continue using it, since it is assumed that it is there for the mitzva and that after the Festival it will be removed. But if after seven days the neighbor did not protest, there is an acquired privilege for him to continue using it. And if the one using the beam attached it with clay, there is immediately such an acquired privilege.
אָמַר אַבָּיֵי: שְׁנֵי בָתִּים בִּשְׁנֵי צִדֵּי רְשׁוּת הָרַבִּים – זֶה עוֹשֶׂה מַעֲקֶה לַחֲצִי גַגּוֹ, וְזֶה עוֹשֶׂה מַעֲקֶה לַחֲצִי גַגּוֹ – זֶה שֶׁלֹּא כְּנֶגֶד זֶה; וּמַעֲדִיף.
§ Abaye says: If there were two houses on two sides of a public domain, this one, the owner of one of the houses, must build a fence for half his roof, and that one, the owner of the other house, must build a fence for half his roof. They must position the fences so that one fence is not opposite the other fence, and each one must add to his fence a little beyond the midway point, so that each one should not be able to see the activity on the other’s roof.
מַאי אִירְיָא בִּרְשׁוּת הָרַבִּים? אֲפִילּוּ רְשׁוּת הַיָּחִיד נָמֵי! רְשׁוּת הָרַבִּים אִיצְטְרִיכָא לֵיהּ – מַהוּ דְּתֵימָא, נֵימָא לֵיהּ: סוֹף סוֹף הָא בָּעֵית לְאִצְטַנּוֹעֵי מִבְּנֵי רְשׁוּת הָרַבִּים;
The Gemara asks: Why discuss specifically the case of two houses on opposite sides of a public domain, considering that the same halakha should apply even if the two houses are separated by a private domain? The Gemara answers: It was necessary for Abaye to mention a public domain, lest you say that one neighbor can say to the other: Ultimately, you need to conceal yourself from people in the public domain. Since in any event you have to build a fence across your entire roof, you cannot compel me to build a fence on my roof.
קָא מַשְׁמַע לַן, דְּאָמַר לֵיהּ: רַבִּים – בִּימָמָא חָזוּ לִי, בְּלֵילְיָא לָא חָזוּ לִי; אַתְּ – בֵּין בִּימָמָא בֵּין בְּלֵילְיָא חָזֵית לִי. אִי נָמֵי, רַבִּים – כִּי קָאֵימְנָא חָזוּ לִי, כִּי יָתֵיבְנָא לָא חָזוּ לִי; אַתְּ חָזֵית לִי בֵּין כִּי קָאֵימְנָא בֵּין כִּי יָתֵיבְנָא. רַבִּים – כִּי מְעַיְּינוּ חָזוּ לִי, כִּי לָא מְעַיְּינוּ לָא חָזוּ לִי; אַתְּ – מִמֵּילָא נָמֵי חָזֵית לִי.
To counter this, Abaye teaches us that this is not so, because the second homeowner can say to the first in response: The public can see me only during the day, when pedestrians pass by, but they cannot see me at night. You, by contrast, can see me both during the day and at night. Alternatively, he can say: The public can see me from the street only when I am standing, but they cannot see me when I am sitting. You, by contrast, can see me both when I am standing and when I am sitting. And furthermore, the public can see me only when they look specifically at me, but they cannot see me when they do not look specifically at me, since the average pedestrian does not look up to see what is happening on the roofs. You, by contrast, can see me in any case, because you live opposite me.
אָמַר מָר: זֶה עוֹשֶׂה מַעֲקֶה לַחֲצִי גַגּוֹ, וְזֶה עוֹשֶׂה מַעֲקֶה לַחֲצִי גַגּוֹ – זֶה שֶׁלֹּא כְּנֶגֶד זֶה; וּמַעֲדִיף. פְּשִׁיטָא!
The Master, i.e., Abaye, said above: This one, the owner of one of the houses, must build a fence for half his roof, and that one, the owner of the other house, must build a fence for half his roof. They must position the fences so that one fence is not opposite the other fence, and each one must add to his fence a little beyond the midway point. The Gemara asks: Isn’t it obvious that each one must make a fence for half his roof?
לָא צְרִיכָא, דִּקְדֵים חַד מִנַּיְיהוּ וַעֲבַד. מַהוּ דְּתֵימָא, נֵימָא לֵיהּ אִידַּךְ: שְׁקוֹל אוּזִינְקָא וְעִבְדֵיהּ אַתְּ כּוּלֵּיהּ; קָא מַשְׁמַע לַן, דְּאָמַר לֵיהּ: אַתְּ מַאי טַעְמָא לָא עֲבַדְתְּ – מִשּׁוּם דְּמִיתְּרַע אֲשִׁיתָךְ; אֲנָא נָמֵי מִיתְּרַע לֵיהּ אֲשִׁיתַאי.
The Gemara answers: No, it is necessary in a case where one of them went ahead on his own and constructed a fence on half his roof, lest you say that the other can say to him: Take from me compensation for the expenditure [uzinka], and you build the entire fence, and in that way we will not invade one another’s privacy. Therefore, Abaye teaches us that the neighbor who built the fence for half his roof can say to him: What is the reason you do not want to build a fence? It is because the added weight will damage your house’s foundation. My foundation too will be damaged if I continue to build on my roof.
אָמַר רַב נַחְמָן אָמַר שְׁמוּאֵל: גַּג הַסָּמוּךְ לַחֲצַר חֲבֵירוֹ – עוֹשֶׂה לוֹ מַעֲקֶה גָּבוֹהַּ אַרְבַּע אַמּוֹת. אֲבָל בֵּין גַּג לְגַג – לָא. וְרַב נַחְמָן דִּידֵיהּ אָמַר: אֵינוֹ זָקוּק לְאַרְבַּע אַמּוֹת, אֲבָל זָקוּק לִמְחִיצַת עֲשָׂרָה.
Rav Naḥman says that Shmuel says: If one’s roof is adjacent to his neighbor’s courtyard, he must build a fence on the roof four cubits high, so that he will not be able to see into his neighbor’s courtyard, but he is not required to build a fence between one roof and another roof. And Rav Naḥman himself says: He is not required to build a fence four cubits high on the roof, but he is required to build a partition that is ten handbreadths high.
לְמַאי? אִי לְהֶיזֵּק רְאִיָּה – אַרְבַּע אַמּוֹת בָּעֵינַן! אִי לְנִתְפָּס עָלָיו כְּגַנָּב – בִּמְסִיפָס בְּעָלְמָא סַגִּיא! אִי לִגְדָיִים וּטְלָאִים – בִּכְדֵי שֶׁלֹּא יִזְדַּקֵּר בְּבַת רֹאשׁ סַגִּי! לְעוֹלָם לְנִתְפָּס עָלָיו כְּגַנָּב, בִּמְסִיפָס – מָצֵי מִשְׁתְּמִיט לֵיהּ, [אָמַר: מַמְצוֹרֵי קָמַמְצֵירְנָא], בִּמְחִיצַת עֲשָׂרָה – לָא מָצֵי מִשְׁתְּמִיט לֵיהּ.
The Gemara asks: For what purpose, according to Rav Naḥman, does the neighbor have to build such a partition? If it is to prevent damage caused by exposure to the sight of others, we require a partition of four cubits. If it is to catch the neighbor as a thief, i.e., to set a boundary between the two properties so that any trespass will be construed as attempted theft, a mere partition of pegs suffices. And if it is to prevent kid goats and lambs from crossing from one roof to the other, a low partition that is high enough so that the goat or lamb will not be able to leap headlong from one roof to the other suffices. The Gemara answers: Actually, it is built to catch the neighbor as a thief. With a partition of pegs he can give an excuse and say that he was merely stretching himself, but with a partition of ten handbreadths he cannot give such an excuse.
מֵיתִיבִי: אִם הָיָה חֲצֵרוֹ לְמַעְלָה מִגַּגּוֹ שֶׁל חֲבֵירוֹ – אֵין נִזְקָקִין לוֹ. מַאי, לָאו אֵין נִזְקָקִין לוֹ כְּלָל? לָא; אֵין נִזְקָקִין לְאַרְבַּע אַמּוֹת, אֲבָל נִזְקָקִין לִמְחִיצַת עֲשָׂרָה.
The Gemara raises an objection to the opinion of Rav Naḥman from a baraita: If his courtyard was higher than the other’s roof, he is not required to attend to it. What, is it not teaching that he is not required to attend to it at all, i.e., that he need not build any type of fence? The Gemara answers: No, it means that he is not required to attend to building a partition of four cubits, but he must attend to building a partition of ten handbreadths, as maintained by Rav Naḥman.
אִיתְּמַר: שְׁתֵּי חֲצֵרוֹת זוֹ לְמַעְלָה מִזּוֹ – אָמַר רַב הוּנָא: תַּחְתּוֹן בּוֹנֶה מִכְּנֶגְדּוֹ וְעוֹלֶה, וְעֶלְיוֹן בּוֹנֶה מִכְּנֶגְדּוֹ וְעוֹלֶה. וְרַב חִסְדָּא אָמַר: עֶלְיוֹן מְסַיֵּיעַ מִלְּמַטָּה וּבוֹנֶה.
It was stated that amora’im disagree about the following case: If there are two adjoining courtyards, one higher than the other, Rav Huna says that the owner of the lower courtyard builds the wall separating the courtyards from his level and upward, and the owner of the upper courtyard builds the wall from his level and upward. And Rav Ḥisda says: The owner of the upper courtyard assists the owner of the lower courtyard and builds from below, even including that part of the wall which is opposite the lower courtyard.
תַּנְיָא כְּווֹתֵיהּ דְּרַב חִסְדָּא: שְׁתֵּי חֲצֵרוֹת זוֹ לְמַעְלָה מִזּוֹ, לֹא יֹאמַר הָעֶלְיוֹן: ״הֲרֵינִי בּוֹנֶה מִכְּנֶגְדִּי וְעוֹלֶה״, אֶלָּא מְסַיֵּיעַ מִלְּמַטָּה וּבוֹנֶה. וְאִם הָיְתָה חֲצֵרוֹ לְמַעְלָה מִגַּגּוֹ שֶׁל חֲבֵירוֹ – אֵינוֹ זָקוּק לוֹ.
The Gemara notes that it is taught in a baraita in accordance with the opinion of Rav Ḥisda: If there were two adjoining courtyards, one higher than the other, the owner of the upper courtyard cannot say: I will build from my level and upward, but rather he assists the owner of the lower courtyard and builds from below. And if his courtyard is higher than the roof of his neighbor, he is not required to attend to it. The owner of the upper courtyard need not build a partition because people do not ordinarily use their roofs.
הָנְהוּ בֵּי תְרֵי דַּהֲווֹ דָּיְירִי, חַד הֲוָה דָּיֵיר עִילַּאי וְחַד הֲוָה דָּיֵיר תַּתַּאי. אִיתְּבַר תַּתַּאי. אֲמַר לֵיהּ תַּתַּאי לְעִילַּאי: ״תָּא וְנִבְנְיֵיהּ״. אֲמַר לֵיהּ: ״אֲנָא שַׁפִּיר קָא דָּאֵירְנָא״.
§ It is related that two people were living in a two-story building; one was living in the upper story, and one was living in the lower one. The lower story began to collapse, its walls sinking into the ground to the point that it was no longer fit for dwelling. The owner of the lower story said to the owner of the upper story: Come and let us demolish the whole building and rebuild it together. The owner of the upper story said to him: I am living comfortably and am under no obligation to rebuild your residence.
