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Week 104 - Friday - 23 November 2001

BAVA BATRA: CHAPTER 1: MISHNAH 1

If joint owners wish to make a partition in a courtyard, they build the wall in the middle. Where the local custom is to build of untrimmed stones, trimmed stones, half-bricks, or bricks - they build; all in keeping with local custom. With untrimmed stones - one gives three tefahim (handbreadths) and the other gives three tefahim. With trimmed stones - one gives two and a half tefahim, and the other gives two and a half tefahim. With half-bricks - one gives two tefahim, and the other gives two tefahim. With bricks -one gives one and a half tefahim, and the other gives one and a half tefahim. Therefore, if the wall fell down, its place and the stones belong to both.

Kehati

Our mishnah deals with joint owners of a courtyard which is in front of their homes. In those days the homes did not open out to a street but rather to a courtyard, which was in most cases the joint property of a number of homes, and the residents used the courtyards for their own diverse purposes. Such a courtyard, which belonged to two or more individuals, was known as a common courtyard, and if, in addition to a space of four amot (cubits) by four amot before each home, there was sufficient space left over for each joint owner to receive an area of at least four amot by four amot, it was known as a courtyard that is subject to partition, which meant that any of the joint owners had the right to demand that the common area be divided up. If, however, the space involved was smaller than the above, it had the status of a courtyard that is not subject to partition, in which case none of the joint owners could insist on the land being partitioned (see below, mishnah 6).

Our mishnah teaches that even with respect to a courtyard that is not subject to partition, if the joint owners agreed to partition it between them and each took possession of his own section of the courtyard in a way that did not permit either to change his mind thereafter, they may force each other to put up a partition in the middle of the courtyard. The partition may be constructed - depending on local custom - of stones, brick, wood, etc.; however it must be such that neither can see what is happening in the other's courtyard. The reason why each can compel the other to contribute to such a wall is hezek re’iyah; i.e., a person is considered to suffer injury if exposed to the view of others. The partition must be at least four amot tall.

If joint owners - If two people who own a courtyard jointly with both of their homes opening out to it, where this is a courtyard that is not subject to partition as explained above, nonetheless wish to make a partition in a courtyard - I.e., they have agreed to divide up the courtyard between them. ("partition" in the mishnah is understood as "division" (Gemara)), they build the wall in the middle - each contributes space for half the thickness of the proposed wall.

Where the local custom - for joint owners who divide a courtyard is to construct a partition of a specific building material, is to build - it of that material, of untrimmed stones, trimmed stones, half-bricks or bricks - they build and neither joint owner can claim that he is only willing to effect the division provided that the partition is made of thin planks; since they had both agreed to the division and each had taken possession of the part to which he was entitled in a manner that did not permit either to change his mind, each can force the other to build a partition constructed of material all in keeping with local custom -

The Gemara explains that the addition of this phrase is meant to indicate that if in certain places the custom is to construct a partition of vine or tree branches, here too one follows that custom, provided that the partition is thick enough to prevent each from seeing the other's side, as a person is considered to suffer injury if exposed to the view of others, as explained above.

If they build the wall with untrimmed stones - One gives three tefahim and the other gives three tefahim - Each has to give three tefahim of his portion in the courtyard, as the thickness of a wall of untrimmed stones, including their projections, is six tefahim.

If they build the wall with trimmed stones - that have no projections; One gives two and a half tefahim and the other gives two and a half tefahim - For the thickness of such a wall is only five tefahim. - In the case of a wall made with half-bricks, One gives two tefahim and the other gives two tefahim - Each gives two tefahim, as the length of a half-brick is one and a half tefahim, and two such half-bricks are joined by putting a tefah of mortar between them, so that the total thickness of the wall is four tefahim. - In a wall made with bricks, One gives one and a half tefahim and the other gives one and a half tefahim - Each gives one and a half tefahim, as the thickness of such a wall is only three tefahim. Therefore - Since the Sages required joint owners to build a wall in the middle between the two properties, if the wall fell down - its place and the stones belong to both -

The Gemara explains that even if the wall collapsed and the building materials fell into the property of one of them, or if one cleaned the materials away into his own property and claimed that the other had either sold him or given him the materials as a gift he is not believed, and the materials are considered to belong to both until such time as one brings proof to the contrary (Rambam Hil. Shekhenim 2:14, 18).

BAVA BATRA: CHAPTER 1: MISHNAH 2

So too with a garden: Where the custom is to put up a fence, one can be compelled to do so; but in the valley, where the custom is not to put up a fence, one cannot be compelled to do so. If, however, one wishes to, he withdraws into his own and builds it, and makes the border-mark on the outside. Therefore, if the wall fell down, its place and the stones belong to him. If they acted by consent, they build the wall in the middle and make a border-mark on each side. Therefore, if the wall fell down, its place and the stones belong to both.

Kehati

After the previous mishnah discussed the law regarding the construction of a partition in a jointly owned courtyard, the present one discusses the law regarding the construction of a partition in a garden or a valley (a grain field). The Gemara explains that in those areas where it is customary for owners of fields to put up fences between their gardens or fields, each can force the other to participate in the erection of the fence, which means that he must cede part of his land sufficient for half the thickness of the fence and must contribute to the construction cost. In those places, however, where it is customary not to put up a fence, neither can force the other to erect a fence. Our mishnah, however, deals with a place where there is no fixed custom, with some people putting up fences and others not doing so. The mishnah here explains that there is a difference between a garden and a valley (Gemara).

So too with a garden - If a person's garden adjoins another person's, or if two people owned a garden jointly and divided it between them, then in those places where there is no custom regarding fencing the law is the same as in those places Where the custom is to put up a fence - between gardens, and one who refuses to do so can be compelled to do so - I.e., if one of the two wishes to put up a fence, he can compel the other to participate in the erection of such a fence.

But in the valley - In a grain field, where there is no custom regarding fencing, the law is the same as in those places where the custom is not to put up a fence and one cannot be compelled to do so - If one does not wish to put up a fence, the other cannot force him to participate in erecting it. If, however, one wishes to - erect a fence, he withdraws into his own property and builds it alone, and makes the border-mark - Some type of identifying sign at the top of the fence, such as a whitewashed square the size of an amah (cubit) by an amah, on the outside - The side facing the other's property. This is so that all will see that he alone built the fence. The Gemara explains that the reason the marker faces the other's property and not his own is that had the law been that the marker was on one's own side, his neighbor, who had not contributed to building the fence could put up a sign on his own side and claim be had contributed to erecting it.

Therefore - Since the person could not force the other to contribute to erecting the fence, if the wall fell down, its place and the stones belong to him - Because the sign proves that he built the wall on his own. If they acted by consent - If however both agreed to build a wall between them, they build the wall in the middle - Each contributes space for one half of the thickness of the wall, and make a border-mark on each side - As a sign that both built it. Therefore, if the wall fell down its place and the stones belong to both - Because it is a joint wall.

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