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Week 105 - Tuesday - 27 November 2001

BAVA BATRA: CHAPTER 2: MISHNAH 3

One may not open a shop of bakers or of dyers underneath the storage shed of another, nor a cattle stall. In reality, they permitted it in the case of wine, but not a cattle stall. A shop in a courtyard - he may protest and say to him, "I cannot sleep because of the noise of those entering and the noise of those leaving." One who makes utensils goes out and sells in the market, but one cannot protest and say to him, "I cannot sleep because of the noise of the hammering," or "the noise of the millstones," or "the noise of the children."

Kehati

One may not open a shop of bakers - One may not locate a bakery, or of dyers - A dyeing plant, underneath the storage shed - A warehouse used for storing grain or fruit - of another - as the heat from the bakery or of the dyeing plant will harm the grain or fruit, nor a cattle stall - Nor may a person open a cattle stall underneath the grain or fruit storage shed of another, as the odor is detrimental to the grain or fruit.

In reality, they - the Sages - permitted it in the case of wine - to open a bakery or dyeing plant underneath a wine storage shed, as the heat is beneficial for the wine (see Bava Metzia 4:11, where we explained that the term "in reality" - in Hebrew be'emet - is used to indicate that this is indeed the halakhah), but not a cattle stall - One is not permitted to open a cattle stall underneath a wine storage shed, because the odor is detrimental to the wine. A shop in a courtyard - If one of the joint owners of a courtyard wishes to open a shop in it, he - any one of the joint owners - may protest - and complain and say to him, I cannot sleep because of the noise of those entering and the noise of those leaving. - i.e., the clientele. As a result he can prevent him from opening the shop. Some explain this to mean that even if a shop was already in existence with the permission of the neighbors, they may protest and claim that originally they had thought that they would be able to bear the noise of the customers. Now they cannot sleep on account of the noise of those coming and leaving. Therefore he must now close his shop (Rashba).

On the other hand, one who makes utensils goes out and sells in the market - is permitted to manufacture them in his plant located within the courtyard, but not to sell them there, but one - of the neighbors cannot protest and say to him, "I cannot sleep because of the noise of the hammering" - As he manufactures the vessels, Or "the noise of the millstones" - Because a person normally works at home, and he cannot be prevented from doing so (Tur; Hameiri). Others hold that the reason why he may make this noise is that he has been undisturbed at this activity for some time (Rambam, Hil. Shekhenim 6:12), or "the noise of the children" - In a Talmud Torah, i.e., if a person teaches children Torah in his home, none of the neighbors may protest that he is unable to sleep because of the noise, since it is a mitzvah to teach Torah. On the other hand, if a person is teaching them other subjects, such as a trade or arithmetic, the neighbors have the right to protest that they are unable to sleep due to the children coming and going.

BAVA BATRA: CHAPTER 2: MISHNAH 4

If one's wall adjoins that of his neighbor he may not join another wall to it, unless he places it four amot away from it. As to windows - above, below, and level with them, four amot.

Kehati

This mishnah deals with a person who wishes to build a wall close to the wall of his neighbor's garden or courtyard, while the neighbor is interested in leaving a pathway open for pedestrians, as the constant traffic treads the ground down and thus strengthens the wall's foundations. The mishnah also deals with a person who wishes to erect a wall opposite his neighbor's windows.

If one's wall adjoins that of his neighbor - If A's wall adjoins B's wall to form a right angle he - A may not join another wall to it - so as to form three sides of a rectangle, unless he places it four amot away – from it B's wall, so that there will be enough room for pedestrians to walk between the walls, as that strengthens its foundations (Rambam; Bartenura; Tiferet Yisrae1). However, the Gemara explains this mishnah as follows: If one's wall adjoined that of his neighbor, i.e., that it was four amot away, and it fell down, he may not join another wall to it unless he places it four amot away from it, meaning that even if A's wall had already stood for a long time four amot from that of B and parallel to it, and then it fell down, should he now wish to build a new wall he cannot claim that the ground around B's wall is now firm and he should be allowed to erect the new wall within four amot from B's wall. He must nonetheless keep the same distance from B's wall. This is certainly so when in the first instance A wishes to erect a wall near that of B. (Tur, Hoshen Mishpat 155; see also Tosefot Yom Tov, who questions this and the previous interpretation). Others interpret the mishnah as referring to a case where A had built his wall close to that of B, with B's permission. A now wishes to erect a second wall adjacent to his own first wall.

The mishnah informs us that he must leave a space of four amot from his first wall, to enable people to walk between them, as the only reason B allowed him to erect his first wall was in order to have passersby tread down the ground between the two walls and there is also benefit to B's wall from people walking between A's two walls (Nimukei Yosef). In any event, all the interpretations agree that the mishnah refers to a wall which needs passersby to tread down the ground on the outside in order to strengthen the wall's foundations, such as the wall of a vegetable garden, where no one walks near the inside of the wall (Rashi), or the wall of a courtyard in a new city, where the ground has not yet been further compressed by people walking there. On the other hand, if a wall has been up for a considerable period of time so that the ground next to it has been sufficiently trodden down, one is permitted to build another wall near it without leaving space in between. (Gemara).

As to windows - If A wishes to build a wall opposite B's windows, above, below, and level with them, four amot - i.e., in the first case, the wall must be at least four amot higher than the windows, so that A will not be able to bend his head and look into B's windows. In the second case, if A builds a wall lower than B's windows, it must be at least four amot lower than the windows, so that he cannot stand on it and look into the windows. In addition, the wall must be at least four amot distant from the windows, so as not to cut off the light from P (Rashi; see also Bartenura, who explains this differently, following Rambam; see also Tosefot Yom Tov).

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