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Week 104 - Tuesday - 20 November 2001

BAVA METZIA: CHAPTER 10: MISHNAH 1

A house and an upper story belonging to two persons collapsed -the two of them divide the wood, the stones, and the mortar, and they see which stones were likely to break. If one of them recognizes some of his stones, he takes them, but they count for him as part of the reckoning.

Kehati

A house and an upper story belonging to two persons - i.e., the house belonged to one person, and the upper story to a second person - collapsed - and it is not clear which part of the ruins belongs to the owner of the house, and which part belongs to the owner of the upper story, e.g., they collapsed at night, and people from the public domain cleared away everything - the two of them divide the wood, the stones, and the mortar - according to the height of the walls, and they see which stones were likely to break - The mishnah teaches a second law here. This refers to a case in which the ruins remained, and the portion of the ruins belonging to each one was recognizable. E.g., if the foundations of the house collapsed, then it is clear that the bottom stones belong to the owner of the house, and the upper stones belong to the owner of the upper story. If the house fell away from its former position, it is clear that the outer stones belong to the owner of the upper story and the inner stones belong to the owner of the house. In such cases, they divide the materials accordingly. Therefore, if some of the stones broke, it is necessary to determine whose stones were likely to break. If the house collapsed and fell in, then it is to be assumed that it was the lower stones which broke; if stones fell beyond the house, then it is to be assumed that it was the upper stones which broke.

If one of them recognizes some of his stones - which had not broken - he takes them - even if they are larger and better than the other stones - but they count for him as part of the reckoning - i.e., his fellow takes their equivalent in whole stones, even if he does not recognize the stones which he takes, and they divide the rest. The Gemara explains that this refers to a case in which his fellow admits to him concerning some of the stones which he recognized as his own, and says that he does not know concerning the rest. Since his fellow makes a partial admission, he is obligated to take a Biblical oath for partial admission, He cannot take an oath, however, since he says, "I do not know," and he is therefore obligated to pay. If, however, he had stated that he did not know concerning all the stones, he then would take a Rabbinic oath that he does not know, and they would divide the stones equally.

BAVA METZIA: CHAPTER 10: MISHNAH 2

A house and an upper story belonging to two persons: the upper story was partially broken through, and the owner of the house does not want to repair, then the owner of the upper story may come down and dwell below until he repairs the upper story for him. Rabbi Yose says, The lower one provides the ceiling, and the one above the pavement.

Kehati

A house and an upper story belonging to two persons - The Gemara explains that this refers to a case of one who has a house with an upper story over it, and who rents out the upper story to his fellow. The upper story was partially broken through - the floor of the upper story, which is also the ceiling of the house, was broken through - and the owner of the house does not want to repair - If the upper story was broken through in the amount of four tefahim or more, the owner of the house is obligated to repair it. If he does not want to repair it - then the owner of the upper story may come down and dwell below - with the owner of the house - until he repairs the upper story for him -

The Gemara explains that this refers to a case in which the landlord said to the tenant, "I am renting to you this upper story which is upon this house." Since he said "upon this house," he committed the house to the upper story. Therefore if the owner of the house did not repair the floor of the upper story which had broken through, the owner of the upper story may come down and dwell in the house, together with the owner of the house, until he repairs it. If, however, he had said to him, "I am renting this upper story to you," without stating to him, "which is upon this house," and the upper story collapsed, the owner of the house does not have to give the tenant another one, and the tenant pays him rent in proportion to the amount of time which he dwelt in the upper story. If, however, he had said to him merely "an upper story," then the owner is obligated to rent him another upper story.

Rabbi Yose says, The lower one provides the ceiling, and the upper one the pavement - Rabbi Yose disagrees with the first opinion in the mishnah; he maintains that the owner of the house is only obligated to repair the ceiling, i.e., the rafters and the timber, while the tenant of the upper story must repair the pavement, i.e., the clay plaster which is plastered on the wood rafters and serves as a floor for the upper story. The Gemara explains the reason for their disagreement. According to Rabbi Yose, the pavement serves only to fill in holes in the floor, and therefore it is the tenant who must repair it. The first opinion in the mishnah is that the purpose of the pavement is to strengthen the ceiling, and therefore the owner of the house is obligated to repair it. The law is in accordance with the first opinion in the mishnah.

We have explained this mishnah as dealing with a landlord and tenant (and not with partners, as in the previous mishnah), since if they were partners, the owner of the lower story is not obligated to repair the ceiling on behalf of the owner of the upper story (Rashi; see Rabbeinu Asher).

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