Torah Community Connections

Week 104 - Wednesday - 21 November 2001

BAVA METZIA: CHAPTER 10: MISHNAH 3

The house and the upper story belonging to two persons collapsed, the owner of the upper story told the owner of the house to build, but he does not want to build, then the owner of the upper story may build the house, and dwell in it until he gives him his expenses. Rabbi Yehudah says, Even this one living within his fellow's, ought to make him a payment. Rather let the owner of the upper story build the house and the upper story, and roof over the upper story, and dwell in the house until he gives him his expenses.

Kehati

The house and the upper story belonging to two persons - the house (i.e., the lower story) belonged to one person, and the upper story to another person - collapsed - and the owner of the upper story cannot rebuild it until the owner of the lower story rebuilds his; therefore if the owner of the upper story told the owner of the house to build - his lower story, so that he could build his upper story on top of it - but he - the owner of the lower story - does not want to build - his house - then the owner of the upper story may build the - lower - house - in the manner in which it had been built originally (Hameiri) - and dwell in it until he gives him his expenses - which he spent on the construction of the house; he then leaves the house and rebuilds his upper story.

Rabbi Yehudah says, Even this one - the owner of the upper story - living within his fellow's - After the latter has paid him his expenses, it transpires that he was living in his fellow's house, and the owner of the upper story therefore - ought to make him - the owner of the house - a payment - rent, even though the owner of the house did not lose anything, since otherwise he would not have rebuilt the house. Nevertheless, since the owner of the upper story benefited (since he would not have had a place to live if it had not been for this house), Rabbi Yehudah maintains that if one benefits, and the other one does not lose anything, the former is obligated to pay rent (Rashi, Bartenura).

Rather let the owner of the upper story build the house and the upper story, and roof over the upper story - i.e., he completes the construction of the entire building - and dwell in the - lower - house until he - the owner of the lower story - gives him his expenses - for its construction. Since his upper story is fit to live in, he does not benefit from the other's house, and therefore has no need to pay him rent (Rashi). Others, however, raise the question that he nevertheless benefits, since he is spared the trouble of going up to the upper story. They therefore read this as - "and roof over the upper story, and dwell within it" - i.e., in the upper story; but he does not allow the owner of the lower story to enter his own house until the latter pays him his expenses (Tosafot).

BAVA METZIA: CHAPTER 10: MISHNAH 4

And similarly, if an olive press which is built in the rock and a garden is on top of it, and it was partially broken through, then the owner of the garden may come down and sow below, until he makes vaults for his olive press. The wall or the tree, which fell into the public domain and caused damage, he is exempt from paying. If they had given him a time to cut down the tree or demolish the wall, and they fell within the time - he is exempt; after the time - he is liable.

Kehati

And similarly, if an olive press - the building in which olives are pressed for oil - which is built in the rock - i.e., within the hill - and a garden is on top of it - the building containing the press, and the olive press belongs to one person and the garden to another person - and it - the roof of the olive press, which is the ground of the garden - was partially broken through - in such a manner that the owner of the garden is unable to sow his garden - then the owner of the garden may come down and sow below - within the building of the olive press - until he - the owner of the olive press - makes vaults - vaulted ceilings, made in the form of a semicircular dome - for his olive press - with the owner of the garden putting soil on top of this and sowing. The wall or the tree, which fell into the public domain and caused damage, he is exempt from paying - since this is a circumstance beyond his control.

If they - the court, had seen that the wall or the tree were shaky, and were about to fall, and they - had given him a time to cut down the tree or demolish the wall - The Gemara explains that the period of time given by the court is thirty days - and they fell within the time - and caused damage - he is exempt - from paying; but if they fell - after the time - period, and caused damage - he is liable - to pay, since he did not cut down the tree or demolish the wall within the time period decreed by the court,

Following the interpretation of Rashi, we explained the first part of this mishnah as dealing with an olive press and garden owned by partners, i.e., one partner owns the olive press, and the other partner owns the garden. This is in spite of our interpretation of mishnah 2 above, concerning the breaking of the ceiling/floor in a two-floor house, which we interpreted as dealing with a landlord and tenant. We stated there that the mishnah dealt with a landlord and tenant since the owner of the lower story would not be obligated to repair the roof for the occupant of the upper story if they were partners. The case in the current mishnah is different, however, since the owner of the olive press also needs a roof, so that his olive press will not be ruined (Rabbeinu Asher). The law in the current mishnah would certainly apply to a landlord-tenant relation-ship: thus, if the owner of the garden had rented his garden from the owner of the olive press, and the roof of the olive press had broken, the former would go down and sow below until the latter repaired the roof (Tosefot Yom Tov; Tur165).

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