Torah Community Connections

Week 106 - Wednesday - 5 December 2001

BAVA BATRA: CHAPTER 3: MISHNAH 5

These are the items that have a hazakah and these are the items that do not have a hazakah: If one was wont to keep his animal in the courtyard, or an oven, a stove, a hand-mill, or raise chickens, or keep his manure in the courtyard - that is not a hazakah. However, if he made a partition for his animal ten tefahim tall, or for an oven, or for a stove, or for a hand-mill, or brought chickens into the building, or made a place for his manure three deep or three high -that is a hazakah.

Kehati

The present mishnah teaches that when a person uses his neighbor's courtyard, certain usages can be used as evidence that the original owner either sold or gave the area to the person who has been using it.

These - items listed below are the items that have a hazakah - If a person put another's land to use for certain functions without the other protesting, it is a hazakah, and the present user can claim the other either sold or gave him the property, and these are the items that do not have a hazakah - Whereas other uses do not constitute proof of a hazakah.

If one was wont to keep his animal in the courtyard - The Gemara explains that this refers to a jointly owned courtyard, where each can prevent the other from leaving items in the courtyard, as the courtyard is to be kept clear as a pathway to the different homes. In practice, however, the joint owners would often leave an oven, stove, or hand-mill in the courtyard, where it would be used for its purpose. So, too, might animals or chickens be kept there. Thus, the mishnah specifies that if a person kept an animal in the courtyard, or an oven, a stove, a hand-mill - i.e., portable items that are not used on a permanent basis, or raise chickens - in the courtyard, or keep his manure in the courtyard - Even if he did any of the above for three years, that is not a hazakah - and the person cannot claim his use for three years in any of the above ways as evidence of having bought or been given the other joint owner's share, for joint owners customarily permit each other to make such use of the joint property. If, however, one used someone else's courtyard for three years in one of these ways, this is a hazakah.

However if - within the joint property he made a partition for his animal ten tefahim tall, or - a similar partition for an oven, or for a stove, or for a hand-mill, or he brought chickens into the building - into another person's building in the courtyard, or he made - a place for his manure three - tefahim deep or three high - so that it is not scattered, that is a hazakah - as all of these are permanent types of usage, and even joint owners do not permit one another to use their communal property for such purposes. Therefore, if no protest was lodged for three years, that is a hazakah, and the person is believed if he claims that the other joint owner either sold or gave him the area for that particular type of use (Rashbam; Rif).

Other commentators explain that if one of the joint owners put up a partition for any of the listed objects and the other did not protest the action, that is an immediate hazakah, and the person who put up the partition is believed if he claims that the other joint owner agreed to let him have that particular place for this use, because partners are wont to protest each other's erecting partitions. If, on the other hand, A used B's courtyard, where A was not a joint owner of the courtyard, for keeping his cattle, growing chickens, or for keeping a stove, oven, or hand-mill, etc., even though he erected a partition this is not a hazakah unless used so for three years (Rambam, Hil. Shekhenim 5:5; Hil. To'en Ve’nitan 12:14).

BAVA BATRA: CHAPTER 3: MISHNAH 6

A gutter-pipe has no hazakah, but its place has a hazakah. A roof-gutter has a hazakah. An Egyptian ladder has no hazakah, and a Tyrian one has a hazakah. An Egyptian window has no hazakah, and a Tyrian one has a hazakah. What is an Egyptian window? Any through which a person's head cannot enter. R. Yehudah says: If it has a frame, even if a person's head cannot enter, it has a hazakah. A projection extending a tefah has a hazakah, and he can protest. Less than a tefah - he has no hazakah, and he cannot protest.

Kehati

This mishnah is a continuation of the previous one, and adds that if a person used something permanent within his neighbor's courtyard, he has a hazakah, and if the item he used was not permanent, he has no hazakah. The commentators argue over what type of hazakah the mishnah refers to. There are those who take the mishnah to refer to a three-year hazakah, i.e., to a hazakah backed by a claim, as explained in the previous mishnah (Rashbam); others take this mishnah (and the previous one) as referring to an immediate hazakah, i.e., that a person can claim that the other person acquiesced in permitting him to make use of the property in this fashion (view of the Geonim, as quoted by Tur 153).

A gutter pipe - A narrow pipe placed at the edge of a roof gutter to ensure that the stream of water is kept away from the wall has no hazakah - and if the water carried by the gutter-pipe falls into a neighbor's property, the neighbor has the right to deflect the pipe so that the water falls elsewhere in the courtyard, and the owner of the gutter-pipe cannot prevent such a move, for he suffers no loss by the action. Nor does he have a hazakah allowing him to pipe the water to that particular side, but its place has a hazakah - but the owner of the gutter-pipe has a hazakah for his gutter-pipe to carry water from his roof, and should the neighbor wish to remove the pipe so that the water does not fall into his courtyard, he cannot do so, as the owner of the gutter-pipe has a hazakah to have the rain fall through his pipe into his neighbor's courtyard (Gemara). Others explain that a “gutter pipe has no hazakah” means that if the pipe is long, the owner of the courtyard has the right to shorten it. A third explanation is that should the owner of the courtyard wish to build a structure underneath the gutter-pipe, the owner of the pipe cannot prevent this.

A roof-gutter - which lies around the entire roof to carry off the excess rainwater, has a hazakah - since such a structure is permanent, the courtyard owner is wont to protest its construction, and since he did not do so, the owner of the roof-gutter has a hazakah on it.

: An Egyptian ladder - which is small, and is used periodically when a person wishes to climb onto his roof or to his dovecote, has no hazakah - As it is not permanent, the owner of the property would not bother protesting its lying in his courtyard; hence its presence in a courtyard does not grant the owner of the ladder any hazakah; And a Tyrian one - which is large and is permanently attached, has a hazakah - because the owner of a property would normally protest the presence of such a ladder, and if he did not it is proof that he does not object, so the owner of the ladder acquires a hazakah.

An Egyptian window - A small window, which in this case opens out to his neighbor's courtyard, has no hazakah - and the owner of the courtyard has the right to put up a structure that will block off the window, and the owner of the window cannot claim that he has a hazakah because the owner of the courtyard never objected. In such a case, the owner of the courtyard can claim that the only reason he did not object was because he felt that the small size of the window did not represent any loss to him, but he certainly would not be willing to allow such a window if it meant he could not build adjacent to it. This law only applies if the window was more than four amot from the ground, but if such a window is less than four amot from the ground, its owner does have a hazakah, and a Tyrian one has a hazakah - As such a window is large, there is certainly a hezek re'iyah, and the owner of the courtyard, who was aware of the damage being caused him, nevertheless chose not to object, so that a hazakah is established, and the owner of the courtyard has no right to build a structure close to the window.

What is an Egyptian window? Any through which a person's head cannot enter - The Gemara explains that this refers to a window used for bringing in air or for guarding a garden or orchard, but if it was made for light, even if it is very small, its owner has a hazakah, and the owner of the courtyard cannot build opposite it so as to block it off.

R. Yehudah, however, says, If it has a frame - of wood, even if a person's head cannot enter, it has a hazakah - Since the owner of the window made it a permanent fixture, as can be seen from the fact that he put up a frame, and the owner of the courtyard saw this and did not object, the owner of the window has a hazakah. The halakhah does not follow R. Yehudah.

A projection - of wood or stone from A's wall into B's courtyard, which can be used by A to hang things on, extending a tefah or more, A has a hazakah - on it, and B cannot build opposite it thereby nullifying its use and he can protest initially, when A wishes to make such a projection and prevent him doing so. If it is less than a tefah so that is not for permanent use he - A - has no hazakah - since B may claim that he did not bother to protest for such a small projection, and he may build opposite it and break it off. And - initially, when A seeks to make such a projection he - B - cannot protest - since it causes no harm to him.

Return to Mishna Yomit Index

Visit the Mishna Yomit Archives