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Week 104 - Shabbat - 24 November 2001

BAVA BATRA: CHAPTER 1: MISHNAH 3

If one surrounds his fellow on three sides, and he erected a fence on the first, second, and third sides, the other is not compelled. R. Yose says, If he then fenced the fourth side, we involve him in all.

Kehati

In the previous mishnah, we saw that a valley is not normally considered to be a place that is partitioned by fences, and the owners of adjoining fields cannot force one another to erect a partition between the fields. The present mishnah elaborates on the previous one by indicating that the reason one generally does not have a partition between fields is that one is not considered to suffer injury by being exposed to the sight of others in one's fields. As a result, neither person can force the other to erect a fence. In the case of the present mishnah, however, where a person's fields surround his neighbor's field and he fences them so that his neighbor's field is fenced in on all four sides, since this helps him to keep out animals, he is compelled to participate in the cost of putting up the fence.

If one surrounds his fellow on three sides - If A bought three fields on three sides of B's field, and he erected a fence on the first, second, and third sides - I.e., A erected a fence between his three fields and that of B, so that B's field is now fenced in on three sides, the other is not compelled - B does not need to participate in the costs of the fencing as he has no benefit from it, since the fourth side of his field is still wide open. As we noted above, the rule is that a valley is generally considered to be an area where fences are not erected. On the other hand, if he, A, fenced off the fourth side so that his B's field is now fenced in on all sides, B is compelled to share in the costs of fencing the other three sides as well, since the fence now serves to prevent the entry of animals into B's field. All he is required to pay, however, is half the cost of a fence made of reeds and not half the actual cost involved, for he can always claim that for him a reed fence would have been sufficient.

R. Yose says, If he then fenced the fourth side - If B fenced in the fourth side of his field, we involve him in all - He must pay half the actual costs of the fence that had been erected earlier around three sides of his field, because by his action he showed that he wanted the fence to be there. Others interpret this to mean that even if A fenced in the fourth side, R. Yose's view is that B can be compelled to participate in the costs of the fencing, since his field is now entirely fenced in and is no longer open to the entry of animals. According to this interpretation, the difference between R. Yose and the First Tanna is that according to the First Tanna, B is only required to pay half the cost of a reed fence, while according to R. Yose, he must pay half the actual cost of the fence put up by A. The halakhah is in accordance with R. Yose.

BAVA BATRA: CHAPTER 1: MISHNAH 4

If the wall of a courtyard fell down, he is compelled to rebuild it to a height of four amot. The presumption is that he paid unless he brings proof that he did not pay. Above four amot, we do not compel him. If one builds another wall close to it, even if he did not put roofing on it, we involve him in all. The presumption is that he did not pay, unless he brings proof that he did pay.

Kehati

This mishnah reverts to the subject of the first mishnah, namely that if two people had a common courtyard which they divided between themselves, each can compel the other to build a wall in the middle, because of hezek re'iyah. The present mishnah informs us that the height for which a person can be compelled to pay is only four amot. Neither can compel the other to pay for any construction higher than four amot, because a wall four amot high is sufficient to prevent hezek re'iyah.

If the wall of a courtyard - that served as a partition between two joint owners fell down - The original wall had been built higher than four amot with the consent of both; nevertheless, now that it has collapsed and must be rebuilt, he is compelled to rebuild it to a height of four amot - They can only compel each other to rebuild it to a height of four amot, in order to prevent hezek re'iyah. The presumption is that he paid - If after the wall has been rebuilt A sues B for half the costs involved and B claims he has paid his share, the presumption is that he has indeed paid, the reason being that since the law that both of the partners are to contribute to building the wall is well-known we assume that no person would undertake to build the wall until he had received the portion due from his fellow, unless he brings proof - Unless A brings witnesses, that he did not pay - I.e., that he demanded payment and B did not pay (Rashi). Others explain this to mean that A brings witnesses that B had been with them in a different place from the day construction had begun, and that they know he has not paid (Rosh).

Above four amot - If one of the two wishes to raise the wall higher than four amot, we do not compel him - the other, to contribute to the additional costs. If one - B - builds another wall close to it - If A paid on his own for the extra construction above a height of four amot and then B builds an adjacent wall on his own property, with the intention of placing a roof between the two walls, even if he - B - did not yet put roofing on it - the space between the walls, we involve him in all - I.e., B is compelled to pay half the cost of the entire wall, because by his action he has shown that he wants to have the dividing wall higher than four amot.

The presumption is that he did not pay - If, after B built the second wall on his own property, A demands payment for the construction of the segment above four amot in height and B claimed he had already paid for this, the presumption is that he has not paid, and he is not believed, unless he brings proof that he did pay - Since it is not commonly known that in a case such as this both must pay for the construction costs in excess of the height of four amot, we assume that he would not pay such an amount unless he has been sued and the court has ordered him to make the payment.

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