Babylonian Talmud: Tractate Baba Bathra

Folio 2a

CHAPTER I

MISHNAH. IF JOINT OWNERS AGREE TO MAKE A MEHIZAH¹  IN A COURTYARD,²  THEY SHOULD³  BUILD THE WALL IN THE MIDDLE. IN DISTRICTS WHERE IT IS USUAL TO BUILD OF GEBIL, GAZITH, KEFISIN OR LEBENIM,⁴  THEY MUST USE SUCH MATERIALS, ALL ACCORDING TO THE CUSTOM OF THE DISTRICT. IF GEBIL IS USED, EACH GIVES THREE HANDBREADTHS.⁵  IF GAZITH IS USED, EACH GIVES TWO HANDBREADTHS AND A HALF.⁶  IF KEFISIN ARE USED, EACH GIVES TWO HANDBREADTHS.⁷  IF LEBENIM ARE USED, EACH GIVES A HANDBREADTH AND A HALF.⁸  THEREFORE IF THE WALL FALLS,⁹  [IT IS ASSUMED THAT] THE PLACE [IT OCCUPIED] AND THE STONES BELONG TO BOTH. SIMILARLY WITH AN ORCHARD,¹⁰  IN A PLACE WHERE IT IS CUSTOMARY TO FENCE OFF, EITHER CAN BE COMPELLED TO DO SO. BUT IN A STRETCH OF CORNFIELDS, IN A PLACE WHERE IT IS USUAL NOT TO FENCE OFF [THE FIELDS]. NEITHER CAN BE COMPELLED. IF, HOWEVER, ONE DESIRES TO MAKE A FENCE, HE MUST WITHDRAW A LITTLE AND BUILD ON HIS OWN GROUND, MAKING A FACING ON THE OUTER SIDE.¹¹  CONSEQUENTLY,¹²  IF THE WALL FALLS, THE PLACE AND THE STONES [ARE ASSUMED TO] BELONG TO HIM. IF, HOWEVER, THEY BOTH CONCUR, THEY BUILD THE WALL IN THE MIDDLE AND MAKE A FACING ON BOTH SIDES. CONSEQUENTLY IF THE WALL FALLS, [IT IS ASSUMED THAT] THE PLACE AND THE STONES BELONG TO BOTH.

GEMARA. It was presumed [in the Beth Hamidrash] that MEHIZAH means a wall, as it has been taught: If the mehiza of a vineyard has been broken down, the owner [of an adjoining cornfield] can require the owner of the vineyard to restore it.¹³  If it is broken down again. he can again require him to restore it.

1. This word may mean either 'partition' or 'division'. The Gemara discusses which sense is intended here.
2. A yard on to which two or more houses open.
3. I.e., unless they agree otherwise.
4. These are names of various kinds of bricks, and their precise sense is explained in the Gemara infra.
5. Because a wall of gebil usually was six handbreadths thick.
6. The usual breadth of such a wall being five handbreadths.
7. The usual breadth being four handbreadths.
8. The usual breadth being three handbreadths.
9. At some subsequent time, when the circumstances under which it was put up have been forgotten.
10. Or 'a vegetable garden'.
11. The point of this remark is discussed in the Gemara.
12. In consequence of the rule just given.
13. If there is a fence between a cornfield and a vineyard, the owner of the cornfield may sow right up to the fence, but if there is no fence he must not bring his seeds nearer than four cubits to the vineyard. V. infra 26a.

If [the owner of the vineyard] neglects the matter and does not restore it, he causes his neighbour's produce to become forfeit¹  and is responsible for his loss. [This being so,] the reason [why either can be compelled to join in putting up the wall] is because they both agreed;²  but if either did not agree. he cannot be compelled. From this we infer that 'overlooking' is not regarded as a substantial damage.³

But may I not say that MEHIZAH means 'division', as in the verse, And the congregation's half⁴  [mehezath. lit., 'division']. That being so, since they agreed to make a division, either can compel the other to build a wall,⁵  from which we infer that overlooking is recognised as a substantial damage! — If that is the case,⁶  why does the Mishnah say. WHO AGREED TO MAKE A DIVISION [MEHIZAH]? It should say, 'who agreed lahazoth [to divide]'? — You⁷  say then that MEHIZAH means a wall. Why then does the Mishnah say. THEY MUST BUILD THE WALL? It should say simply. 'They must build it'? — If the Mishnah had said 'it', I should have understood that a mere fence of sticks is sufficient. It tells us [therefore that the partition must be a wall].

THEY MUST BUILD THE WALL IN THE MIDDLE. Surely this is self-evident? — It had to be stated in view of the case where one of the partners had to persuade the other to agree. You might think that in that case the second can say to the first: When I consented to your request. I was willing to lose part of my air space.⁸  but not part of my ground space.⁹  Now we know [that he cannot say so].

But is then overlooking no substantial damage? Come and hear: SIMILARLY WITH AN ORCHARD?¹⁰  — There is a special reason in the case of an orchard, as we find in a saying of R. Abba; for R. Abba said in the name of R. Huna, who said it in the name of Rab: It is forbidden to a man to stand about in his neighbour's field when the corn In It is In the ear.¹¹  But the Mishnah says AND SIMILARLY?¹²  — This refers to the gebil and the gazith.¹³

Come and hear:¹⁴  'If the wall of a courtyard falls in, he [the joint owner] can be compelled to help in rebuilding to a height of four cubits'?¹⁵  — If it falls, the case is different.¹⁶  But what then was the point of the objection?¹⁷  — Because it could be said that this statement was required only as an introduction to the next, which runs, 'Above four cubits he is not compelled to help in rebuilding.'¹⁸  Come and hear: [Every resident in a courtyard] can be compelled to assist in building a gateway and a door to the courtyard.¹⁹  This shows, does it not, that overlooking is a substantial damage? Injury inflicted by the public is in a different category. Is then overlooking by a private individual not an injury? Come and hear [this]: 'A courtyard need not be divided [on the demand of one party] unless it is large enough to allow four cubits to each',²⁰  which shows that if enough space will be left to each, a division can be demanded. Must not that division be made by a wall? — No; a mere fence of sticks is sufficient.²¹

Come and hear: '[A wall built facing] windows, whether above, below, or opposite. [must be kept] four cubits away';²²  and in explanation of this it was taught that [if higher] it must be four cubits higher so that one should not be able to peep over and look in, and [if lower] four cubits lower so that one should not be able to stand on it and look in,²³  and four cubits away so as not to darken the windows? — Damage [caused by looking into] a house is different.²⁴

Come and hear: 'R. Nahman said in the name of Samuel: If a man's roof adjoins his neighbour's courtyard, he must make a parapet four cubits high'?²⁵  — There is a special reason there, because the owner of the courtyard can say to the owner of the roof, I have fixed times for using my courtyard, but you have no fixed times for using your roof, and I do not know when you may be going up there

1. Because that part which is sown near the vineyard is regarded as being sown in the vineyard itself, and therefore when the produce reaches a certain height it becomes forfeit, according to the law in Deut. XXII, 9. Thou shalt not sow thy vineyard with mingled seeds.
2. To divide the courtyard by means of a wall and not merely by a fence of sticks.
3. Lit., 'the damage of overlooking is not called damage'. The 'overlooking' is the power of either owner to see what the other is doing in his half of the courtyard.
4. Num. XXXI, 43.
5. And not merely a fence of sticks.
6. That mehizah means 'division'.
7. I.e., you who object to mehizah being taken to mean 'division'.
8. By allowing, say. a thin partition of boards which would prevent my looking over into your part.
9. Lit., 'service': the space in his own half which would be taken up by a thick wall.
10. What reason can there be here save to prevent overlooking?
11. So as not to injure it by casting on it the 'evil eye'; hence this is no proof that overlooking is an injury.
12. Which implies that the reason is the same in the case of an orchard as in the case of a courtyard.
13. That is to say. that the wall in an orchard, if there is to be one, must also be made of these materials.
14. A further objection to the thesis that overlooking is no injury.
15. Infra 5a. This would show that overlooking is an injury.
16. Because the joint owners had already agreed to have a wall.
17. Lit., 'He who asks this, how can he ask it.' the answer being so obvious.
18. And if this is so, then the case of the wall falling is not different from the case of there being no wall, and overlooking is an injury. Consequently the objection from the statement 'If the wall falls in, etc,' is a sensible one.
19. So as to prevent the passers.by looking in, Infra 7a.
20. Infra 11a.
21. And overlooking is not a substantial damage.
22. Infra 22a. The reference is to a wall built by the joint owner of a courtyard opposite his neighbour's windows.
23. Which shows that overlooking even by a private individual is a substantial damage.
24. Because greater privacy is required in a house,
25. So that he should not be able to look over into the courtyard when using the roof. Infra 6b.