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Week 106 - Thursday - 6 December 2001

BAVA BATRA: CHAPTER 3: MISHNAH 7

One may not open his windows to a jointly owned courtyard. If he bought a house in another courtyard, he may not open it to the jointly owned courtyard. If he built a second story above his house, he may not open it to the jointly owned courtyard; but if he wishes, he builds the room within his house, or he builds a second story above his house and opens it into his house. One may not open in a jointly owned courtyard a door facing a door or a window facing a window. If it was small, he may not make it large. One, he may not make it two. But he may open to a public thoroughfare a door opposite a door and a window opposite a window. If it was small - he may make it large. One - he may make it two.

Kehati

This mishnah returns to the question of hezek re'iyah, injury resulting from exposure to the view of others.

One may not open his windows to a jointly owned courtyard - This is even true if be is one of the joint owners, and all the more so if the courtyard does not belong to him; the reason for the prohibition being hezek re'iyah. If he bought a house in another courtyard - If one of the joint owners of a courtyard bought a home in another courtyard close to the present one, he may not open it to the jointly owned courtyard - He may not construct an entrance leading to the original courtyard, since he will cause more people to use the courtyard than before (Rashbam), the original courtyard now becoming accessible to the people who live in the second.

If he built a second story above his house - in a jointly owned courtyard, he may not open it to the jointly owned courtyard - He may not have the entrance of this new apartment lead into the jointly owned courtyard, as this adds to the number of people using the courtyard; but if he wishes he builds the room within his house - and the other joint owners cannot prevent this; or he builds - a second story above his house - provided that he and opens it into his house - The commentators, basing themselves on the Gemara, explain that this does not mean that he may add a room behind his home or on top of it. One may only subdivide his present home, either by dividing a room into two, or by adding a lowered ceiling so as to divide the room into two floors, and he has the right to rent out his home to many tenants without the other joint owners of the courtyard being able to object (Rashbam; Bartenura). Other commentators hold that a person may not add extra tenants to his home, even though he adds no new building, but may only subdivide his home if he needs storage space (Ramah). Other commentators interpret the mishnah to mean that one may actually add an extra room or floor to one's home, provided that these additions do not open out to the jointly owned courtyard, for the fact that the only access to these rooms is through the person's home will inhibit others from renting the premises, so that there will not be any added pressure on the jointly owned courtyard (Rif; Rambam, Hil. Shekhenim 5:8; note also Maggid Mishneh ibid.; Tur, Hoshen Mishpat 154).

One may not open in a jointly owned courtyard - even if he had a previous hazakah for such an opening (Rashbam), he may not build a door facing a door - which will face his neighbor's door, or a window facing a window - Nor may he construct a window which would allow him to look into his neighbor's window (Rambam). The Gemara deduces this from the verse (Num. 24:2), "'And Balaam looked up and saw Israel dwelling according to its tribes.' What did he see? He saw that the entrances to their tents did not face one another. He exclaimed: 'These are worthy of having the Divine Presence rest upon them."' As to how far away one must be from the other, Rashbam explains that even a short distance between the two is sufficient (see Tosefot Yom Tov).

If it - one's door or window was small, he may not make it large - for his neighbor may claim that as long as it was small, he could find some privacy, but this will not be true if the door or window is large (Gemara). One - If a person had a single door or window, he may not make it two - Even if the total size of the two does not exceed the size of the original one, for with two it is more difficult for one's neighbor to have privacy (Gemara).

But he may open to a public thoroughfare - A person is permitted to construct, facing a public thoroughfare, a door opposite a door - One's door may face that of a neighbor, and a window opposite a window - And one's window may face that of a neighbor, for in any event the neighbor has lost his privacy due to the people who pass through the street. If it was small - If either a door or window facing the public thoroughfare was small, he may make it large - He has the right to replace it with a large door or window. One - If he had a single door or window, he may make it two - He has the right to replace it with two doors or windows. On the other hand, if a person has a second story window facing the thoroughfare, where those passing by it would not normally be able to see inside, a neighbor does not have the right to construct a window opposite the second story window.

BAVA BATRA: CHAPTER 3: MISHNAH 8

One may not make a cavity under a public thoroughfare, cisterns, ditches, or caves. R. Eliezer permits, so that a wagon can travel carrying stones. One may not make a projection or a balcony into a public thoroughfare, but if one wishes he may withdraw into his own and project. If one bought a courtyard and in it there are projections and balconies, it retains its hazakah.

Kehati

Continuing along the lines of the previous mishnah, this mishnah teaches that one is not permitted to construct anything in a public thoroughfare that may injure a passerby.

One may not make - One is forbidden to make a cavity under a public thoroughfare - such as cisterns, ditches, or caves - by digging in his own property and then extending outward underneath the public thoroughfare, or by digging in the public thoroughfare and then covering the hole. The commentators explain that this is forbidden even if the person is willing to assume liability for any damage that may be caused, for no person wishes to be injured and then to have to sue in court for compensation.

R. Eliezer permits - one to construct underneath a public thoroughfare, provided that the cover to the hole is strong enough so that a wagon can travel carrying stones - so that a wagon heavily laden with stones can pass across the top safely without it caving in. The Sages, on the other hand, hold that even if the cover is strong, it will probably eventually deteriorate, and one day some unsuspecting person is liable to fall into the pit and be injured. The halakhah follows the Sages.

One may not make a projection or a balcony - either beams or rooms extending from one's wall into a public thoroughfare - because people might be injured by these, but if one wishes - If a person wishes to have a projection or balcony, he may withdraw into his own - He may build his wall away from the thoroughfare a sufficient distance so that the end of the beam or the balcony does not extend into the thoroughfare, and project - One cannot prevent him from doing so with the claim that people sometimes are pushed to the side, off the public thoroughfare, and maybe injured by the beam or balcony on the person's property, the reason being that since these are contained within his own property, it is the passerby's duty to guard himself and keep away (Tosefot Yom Tov).

If one bought a courtyard - and finds that in it there are projections and balconies extending into the public thoroughfare, it retains its hazakah - The buyer cannot be forced to remove these, for we assume that when the original owner built it, he must have built it within his own property (and the thoroughfare was broadened later).

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