Bava Batra, daf bet (page two). Masechet Derech Eretz (Tractate Derech Eretz). Refuah shelemah, Shimon ben Simcha; Esther bat Sarah, refuah shelemah; zera chaya vekayama, Moshe ben Sarah; Torah, yirat shamayim (fear of Heaven), yizkeh lechupato, velivnot bayit ne'eman beYisrael (and to build a faithful home in Israel), amen. Amen.
So we begin Bava Batra. Tosafot says, “Kula Nezikin chada masechta hi” (the entire order of Nezikin is one tractate). They divided it into Kama, Metzia, and Batra, but technically it is all one masechet (tractate). Our masechet begins with shutafin (partners). Tosafot says that shutafin are partners. Tosafot asks, what is the connection between shutafin and Bava Metzia, which we just finished? The connection is obvious. The last Mishnah we learned was about the shutafin in the gag (roof), the shutafin in the bayit (house), and the aliyah (upper story). Since we talked about partners, we continue talking about partners now in a chatzer (courtyard).
What is a chatzer? Rashi tells us right away that in the olden days, that was how people lived—in courtyards. “Vechol chatzerot sheshanu chachamim lifnei habatim hen, verov tashmishan bachatzer” (all the courtyards that the Sages taught about are in front of houses, and most of their use is in the courtyard). That is where they used to do all their work; all their work was done in the chatzer, in the courtyard.
The Mishnah says, “Hashutafin sheratzu la'asot mechitzah (it's a wall) bachatzer” (partners who wish to make a wall in the courtyard). You have partners, and they decide to make a wall. Well, we do not yet know what it is; they want to make a mechitzah. The Gemara is going to ask, “Mai mechitzah?” But the Mishnah says “mechitzah”—it is a wall. They want to make it in the courtyard, and both of them are doing this, meaning that they have both agreed to it: “Bonim et hakotel ba'emtza” (they build the wall down the middle). What does ba'emtza mean? Rashi says, “Zeh noten mechelko chatzi mekom ovi hakotel vechen zeh” (each gives half the space for the thickness of the wall). You have the space, and some of the wall will be on Reuven’s property and some of it on Shimon’s. You have to split the space where the wall will go, and you also have to split the expense of paying for it. That is what ba'emtza means.
“Mekom shenahagu livnot gevil (different types of building materials), gazit (different types of building materials), kefisin (different types of building materials), levenim (different types of building materials), bonim” (in a place where the custom is to build with these materials, they build with them). It all goes according to the minhag (custom): “Hakol keminhag hamedinah” (everything follows the custom of the region). There is a type of brick called gevil, another type called gazit, and another called kefisin. Rashi says the Gemara is going to explain all these items. The Mishnah follows the minhag hamedinah. What is the minhag hamedinah? Rashi says, “Minhag livnot begevil, ein chavero yachol lomar eini chafetz ela begazit” (if the custom is to build with gevil, his fellow cannot say, “I want gazit instead”). You cannot come along and say, “No, I want gazit.” Everybody is building their homes over here with gevil, so he has to acquiesce.
Tosafot says that the Mishnah is now going to give us the measurements. How much is gevil? We learned it in the last masechet: “Zeh noten gimel tefachim vezeh noten gimel tefachim” (one gives three handbreadths, and the other gives three handbreadths). Basically, gevil is a thickness of six tefachim (handbreadths). Each one has to give three tefachim, because they are splitting it down the middle.
How much is gazit? That will be five: “Zeh noten tefachayim umechtzah vezeh noten tefachayim umechtzah” (one gives two and a half handbreadths, and the other gives two and a half handbreadths). So it is five, and each one has to give two and a half.
“Bichfisin, zeh noten tefachayim vezeh noten tefachayim” (with kefisin, one gives two handbreadths and the other gives two handbreadths). That makes four, so each one has to give two.
“Bilveinim, zeh noten tefach umechtzah vezeh noten tefach umechtzah” (with bricks, one gives one and a half handbreadths and the other gives one and a half handbreadths). Gimel tefachim is three, so each one gives one and a half.
Tosafot asks, why do you need to give me the shiur (measure) here? The Mishnah just said, “Hakol keminhag hamedinah.” Whatever the minhag hamedinah is, that is what you do. Why do you need to give me the shiur? Tosafot says, “Veyesh lomar de'im nahagu yoter mivav begevil lo ya'aseh” (one can say that if the custom is to make the gevil more than six, he should not do so). Even if the custom in the place is to make gevil more than six, you do not do that. Six is the number. The fellow cannot come along and say, “I want to make gevil eight.” You have a certain shiur, “vechen kulam” (and likewise with all of them), “ela keshiur meforash” (but according to the stated measure). “Umihu im nahagu la'asot pachot mivav ya'aseh” (however, if the custom is to make it less than six, he may do so). If they do less than six, then the minhag hamedinah is to do less, but not more. That is why the Mishnah gives these cases.
Now the Mishnah says that the wall is down the middle, and both people did it; they both agreed to do it. Therefore, the Mishnah concludes, “Lefichach im nafal hakotel hamakom veha'avanim shel shenehem” (therefore, if the wall falls, the place and the stones belong to both of them). Rashi says, “Ho'il uvit-chilat habinyan chiyvum chachamim livnot mishenehem” (since the Sages required them to build it together). Since the Rabbis require them to build it together, we automatically see that a wall like this indicates a partnership. “Im nafal hakotel le'achar shanim rabim” (if the wall falls after many years), when people have already forgotten what the arrangement was, “ve'ein echad yachol lomar kol hakotel nivnah bechelki umisheli hayu avanim” (neither one can say, “The entire wall was built on my property, and the stones were mine”). The fellow cannot come along later and claim, “Those are my bricks; that space is mine,” “af al pi she'uzak yoter mechavero” (even though his claim of possession is stronger than his fellow’s).
How can he have a stronger chazakah (presumption of possession)? “Kegon shenafeil hakotel bechelko” (for example, the wall fell on his portion). Let us say the wall fell on his property. That immediately gives him a stronger claim: “It is on my property; what is on my property belongs to me.” Still, Rashi says that since that was the arrangement, we automatically assume they followed the rules: ba'emtza, split it down the middle. Therefore, everybody has equal rights to something like this.
The Mishnah then says, “Vechen beginah” (and likewise regarding a garden). The same applies to a garden. We will see exactly what this means. It sounds like the same thing: two people have fields next to each other in a garden, and they decide to put a wall between them. They follow the same rules. “Makom shenahagu ligdor mechayevin oto” (in a place where the custom is to fence, they compel him to do so). Again, if the minhag in a place is to make a fence, they compel him to make one. “Aval bevik'ah” (but in a valley field): what is a bik'ah? It is a field that Rashi calls “sedeh lavan” (grain field)—that is where they plant wheat. The wheat looks white from above, so it looks like a field of white. The Mishnah says, “Makom shenahagu shelo ligdor ein mechayevin oto” (in a place where the custom is not to fence, they do not compel him). The custom is the opposite: if the minhag is not to make a fence, you do not force them.
But it sounds like, ordinarily, you build a fence. So this is different from a case of chatzer. In a chatzer, the shutafin need a minhag to build a fence, and they have to agree to it. Here, you need a minhag not to build a fence to stop one of them from building. But if there is no such custom, a person can put up a fence without any question. We will have to see the difference between sedeh lavan and a chatzer and a ginah (garden).
“Aval bevik'ah makom shenahagu shelo ligdor ein mechayevin oto, ela im ratzah” (but in a valley field, where the custom is not to fence, they do not compel him, although he may do so if he wishes). If a person wants to build a fence, he cannot force the neighbor, because the minhag is not to build one, but he wants privacy. What do you tell him to do? “Kones letoch shelo uvoneh ve'oseh chazit mibachutz” (he takes in from his own side, builds, and makes a marker on the outside). He can build the fence on his side of the field, “kones mishelo” (he takes from his own property), and puts a mark on the outside of the wall so everybody will know it is his wall. Otherwise, later the other fellow might come along and say, “We were partners in the wall.” He puts a siman (mark) on the outside. We will see exactly what the siman is, so that if the wall falls later, everybody will know it belongs to him.
Rashi says, “Ve'oseh chazit mibachutz baGemara mefaresh” (he makes a marker on the outside; the Gemara explains it). “Lefichach im nafal hakotel hamakom veha'avanim shelo” (therefore, if the wall falls, the place and the stones belong to him). That is obvious: if the wall falls, it belongs to him.
“Im asu mida'at shenehem” (if they made it with the agreement of both of them): let us say they decide to build together. “Bonim et hakotel be'emtza” (they build the wall down the middle), the same law; they build it down the center. “Ve'osin chazit mikan umikan” (they make a marker on this side and on that side). Now they have to make a chazit, a siman on both sides. At first glance, why do they have to put a siman on both sides? Rashi says, “Lehodia sheshnehem asa'uhu” (to show that both of them made it). In these cases, it is not so simple that both of them made the wall. Even though you see it is in the middle, one of them might have built it, so the Gemara will go through all of that.
“Lefichach im nafal hakotel hamakom veha'avanim shel shenehem” (therefore, if the wall falls, the place and stones belong to both of them). That is the rule here. Yes: “Shutafin davka” (partners specifically), or does it? No, “davka shutafin” (specifically partners), as we will see in the Gemara. We will see exactly what shutafin means, and whether it is davka, in the Gemara.
The Gemara begins: “Savruha” (they thought to say). The chachamim in the beit midrash had an opinion about how to learn the Gemara. This is a different type of sevara (reasoning). Normally, savruha is a hava amina (initial assumption), and then the Gemara rejects it. Tosafot says that here this savruha actually remains lem as kana (the conclusion). It is a funny savruha. Normally, the technique of a savruha is that they thought to say something and then rejected it. But this savruha stays until the end. There are two leshonot (versions) there, and this is the first lashon. Tosafot says, “Af al gav dulesof kehai” (even though at the end it will stand), “ka'amar savruha lefi shezeh halashon eino ikar” (it says savruha because this version is not the principal one). There is a second lashon that will be the main one, so they called the first one savruha. Do not think that it will be rejected.
What is the sugya (discussion) here? It begins: “Savruha mai guda?” (They reasoned: What is a partition?) What is guda? “Mai mechitzah?” (What is a mechitzah?) The Mishnah’s lashon is, “Shutafin sheratzu la'asot mechitzah.” What is a mechitzah? You might think that is a simple question: What is a mechitzah? A mechitzah is a mechitzah. It is a straightforward question. The Gemara is going to give different opinions. The Gemara says, “Guda.” What is guda? “Kotel.” Very good; now we know the word. How do you know that mechitzah means guda, that it means kotel? “Kedetanya” (as it is taught): we have a Mishnah or beraita (external teaching) in Kilayim, “legabei Kilayim” (regarding Kilayim). What does it say? “Mechitzat hakerem” (the vineyard’s partition). A person has a vineyard, and next to the vineyard is wheat. We know that if they are too close together, there is a problem of kil'ei hakerem (forbidden vineyard mixture). The law is that if there is a wall between them, it is not a problem. What happened? “Venifretzah” (it was breached). The wall between them was breached. “Omer lo” (he says to him): the ba'al tevuah (grain-field owner) tells the ba'al hakerem (vineyard owner), “Gedor” (fix your fence). It breached again, and he tells him again, “Gedor.” So what do you see here? He keeps telling him to put his fence back up, gedor—make the mechitzah.
Rashi says, “Mechitzat hakerem shesamuchah lisdeh halavan shel chaveiro, omer lo leva'al hakerem” (the vineyard partition next to his fellow’s grain field: he says to the vineyard owner). The ba'al hasadeh tells the ba'al hakerem, “Gedor,” fix it, “atah shelo yasugu fanecha et tevuat hasadeh mishum kilayim” (so that your vines do not encroach on the field’s grain and make it forbidden because of Kilayim). You will make my field forbidden because of Kilayim.
Remember that at the end of Bava Metzia we had a big machloket (dispute) about who has to distance himself from the nezek (damage): the nizak (injured party) or the mazik (damaging party). Here we see: who has to fix it? The mazik! But we learned earlier, “Shehanizak tzarich leharchik et atzmo” (the injured party must distance himself). So the kerem fellow should tell the tevuah fellow to fix the fence himself: you are the nizak; “hanizak tzarich leharchik.” Unless we said that it is “girei dileih” (his arrows), a direct, direct damage. Remember the case of the water, where the person on the second floor waters onto the other person’s head? There we said that is girei dileih. If the damage is direct, then the person with the kerem has his things directly going into the—The wheat does not go anywhere; the wheat stays where it is. The kerem grows into the—Right, but it is closer than the, than the, than the kid than the tevuah guy. No, but if you compare the tevuah fellow to the kerem, that is the point. Who is more aggressive? Who is more active? They consider it girei dileih, and that is what is happening here.
Rashi continues. He tells him to fix it “lefi shesamach ba'al hasadeh et zera'av samuch lagader” (because the field owner placed his seeds right next to the fence). He put his zera'im (seeds) right next to the fence, which is permitted. As long as there is a fence, a person can go right up to it and put his things there. “Kedetnan beperek sheni: Hayah gader beintayim, zeh somech lagader mikan et ilanotav vezeh somech lagader et zera'av mikan” (as we learned in the second chapter: if there was a fence between them, one plants his trees on this side of the fence, and the other plants his seeds on that side).
But when there is no fence, “tnan beperek sheni, lo yita adam ilan samuch lisdeh chaveiro ela im ken hirchik mimenu arba amot kedei avodat hakerem” (we learned in the second chapter that a person may not plant a tree next to his fellow’s field unless he leaves four cubits for vineyard work). Avodat hakerem means they would go around with the wagon to check the fields. You need four amot (cubits) so the wagon wheels and the plow can get through. If you are not putting up a fence, then everybody needs four amot of separation.
What happened here? They went mamash wall to wall, and the wall fell. The ba'al hakerem is in trouble, so the ba'al hatevuah tells him, “Fix it again.” Then it fell again. What does he tell him again? “Gedor.” He keeps telling him, “Gedor, gedor.” Why did he have to keep telling him? You might have thought that after doing it once, he does not have to do it again. Tosafot points out, “Sheyeish lehistapek, ofen shenifretzah bashlishit” (there is a doubt about the case where it was breached a third time). He said gedor, gedor; how about gedor a third time? Is it davka or not davka? “Ha'im tzarich lehatrot bo shuv” (does he have to warn him again)? Maybe the first two warnings were enough, and now he has to do it on his own. He cannot come along and say, “You did not warn me; you did not tell me.” I already warned you twice; you have to fix it. Otherwise, you could not make a claim against the fellow the first time and take him to beit din (court), saying he did not put up the fence; he could say nobody told him to do so. The question is whether, after two warnings, we consider it—Tosafot’s safek (doubt) is unresolved.
So the Gemara is not saying that the wall actually breached twice; he is just warning him. Right, he is warning him, “Gedor, gedor.” He tells him twice. The Mishnah says, “Nitya'esh heimenah velo gaderah” (he despaired of it and did not fence it). The fellow does not put up the fence; he does not listen. He gives up. What ends up happening? The growth continues, and now it makes the tevu'ah forbidden. The law is, “Harei zeh kidesh” (this has rendered it forbidden), meaning he makes the tevu'ah forbidden as Kilayim, “vechayav be'achariyutah” (and he is liable for it). Now the ba'al hakerem has to pay for the tevu'ah that he made forbidden.
Put everything else aside: what do you see from this beraita? What is a mechitzah? A mechitzah is a guda; it is a wall. Rashi says, “Kidesh hatevu'ah im hosif matayim” (it renders the grain forbidden if he added a two-hundredth). There has to be a certain shi'ur; it has to be at least one two-hundredth of the field. Anything less than that will not be forbidden. “Lishna dekra nakat pen tikdash” (it uses the wording of the verse, “lest it become forbidden”). That is why it says, “Harei zeh kidesh,” because the pasuk (verse) says, “Pen tikdash.” We use the same lashon. “Tikdash” here means forbidden; it does not mean that it becomes holy. It is as if it were holy, and something holy is normally asur (forbidden). Here it is forbidden in a bad way, because you made it Kilayim.
The Gemara therefore gives us a beautiful understanding. According to the Mishnah here, we understand what the Mishnah means. The Mishnah is talking about people who both decided to put up a wall. Why would they want to put up a wall? Obviously, they are looking for privacy. What privacy do they want? The Gemara will say that there is a concept called hezek re'iyah (damage by being seen). What is hezek re'iyah? When we talk about damage, we usually mean that you physically damage something: you take a hammer and break something belonging to the other fellow, or take a sickle and cut down his wheat. That is physical damage. But there is a new kind of damage, the damage of the eyes: hezek re'iyah. That is in this week’s parashah: “Velo taturu acharei levavchem ve'acharei eineichem” (do not follow your hearts and your eyes)—hezek re'iyah. People do not want other people looking into their business; they want privacy. If there is no wall, you can peer over and see what is going on in my business, and that is considered a hezek. There is a machloket about whether it is a hezek or not, and the Gemara is going to discuss that now.
They decide to put up a wall, but it sounds as if it is only because they decided to. Let us say they did not decide. One fellow says, “I do not want you looking at my side of the field.” He should be able to put up a wall even if the other fellow disagrees. Why does the Mishnah only say ratzu (they wished to)? The Gemara says, “Ta'ama deratzu” (the reason is that they agreed). It is only because they both agreed. “Ha lo ratzu” (if they had not agreed): let us say the shutafin did not agree, but one of them wanted to put up a wall. Why? “Mind your own business. I do not want you looking over at my side while I am working. I cannot work when people are looking at me.” That is considered hezek. This is also a discussion in real estate: privacy. A person builds a house right next to his neighbor’s, with the windows looking into the other fellow’s house. That is a claim of hezek re'iyah. There is an even stronger claim in a house, as the Gemara will say. But the point is that the Mishnah’s diyuk (inference) is only that they agreed. If they did not agree, one fellow cannot simply go and put up a wall.
Right: “Ein mechayvin oto” (they do not compel him). You cannot force the fellow to be partners with you. You can put up a wall on your own property, but you cannot tell him, “You are causing me hezek; partner with me.” No. “Alma,” the Gemara says, “hezek re'iyah la shemeh hezek” (apparently, damage by being seen is not considered damage). If it were a hezek—if you were damaging me—of course you would have a responsibility to share the burden.
Rashi says, “Ta'ama deratzu livnot kotel” (the reason is that they agreed to build a wall). It is only because they agreed to build a kotel. What does “de'al mida'at shenehem” mean? It was with the agreement of both of them. “Vechiyvum chachamim sheyivnu bein shenehem” (the Sages required them to build between them both). Rashi explains the Gemara’s question: “Kesheratzu, mai havei? Lehadar behu” (if they agreed, what does that establish? They can retract). They agreed, so let the fellow back out. Just because I said I would do it, am I forced to do it? Why can he not change his mind? That is the Gemara’s question later: “Lehadar behu”—let him change his mind.
“Aval lo ratzu shenehem” (but if they did not both agree), “sheyehe echad omer: Dayan chalukah bemesipas” (one says, “Let the division be with a partition of pegs”). What is mesipas? “Yetedot, etzim teku'im ba'aretz nemuchim” (low wooden pegs driven into the ground). “Lo kaifinan leh” (we do not compel him), “she'ein zeh yachol lomar lo: Eini chafetz shetireh askai” (because the other cannot say, “I do not want you to see my business”). The other fellow says, “No problem. You want to put a mechitzah down the middle? Let’s put up pegs, small pegs.” The first fellow says, “No, I do not want these small pegs. I do not want you to see my business.” You cannot force him. They can only put up a wall when both of them agree. If only one agrees, the other cannot tell him, “Let’s put a mechitzah in the middle.” The other fellow can say, “You want to put up a wall? Put these small pegs on the ground.” Why? Because we have to hold that hezek re'iyah is not considered a hezek; that is why you cannot force him.
The Gemara says, “Wait, ve'eima” (and perhaps we could say something else). Who told you that mechitzah means guda? “Ve'eima mechitzah pelugta” (perhaps mechitzah means a division). What is pelugta? A division, not a wall. We are going to divide the chatzer. They share a chatzer, and now they say, “You know what? We do not want to share it anymore. Let’s divide it. You take your part, and I will take mine.” How do you know that mechitzah can mean pelugta, a division? “Kidechtiv” (as it is written) regarding Midyan. What does the pasuk say? “Vathi mechtzat ha'edah” (the congregation’s half). The pasuk says that they divided the spoils, so you see that the word can be used regarding a division.
The law is also “kevan deratzu” (once they agreed). Now watch: what did they agree to? They agreed to divide. Then what does the Mishnah say? If they agreed to divide, “bonim et hakotel be'al korchan” (they build the wall against their will). Now you have to build a wall. The other fellow cannot say, “I want these small pispisim”—whatever Rashi calls these mesipas. Here, the discussion was not about a wall; it was about the division.
Let’s review. Two people are sharing the chatzer. They say, “You know what? We have to part ways. We have to split the chatzer. You take your part; I’ll take mine.” That is what they are agreeing to. They are not agreeing on the wall; they are agreeing on the division. What does the Mishnah say in that case? “Hapeshuto kemashma'o, ratzu la'asot mechitzah.” What does mechitzah mean? “Chalukah” (division). Then what is the law? “Bonim et hakotel ba'emtza.” You force them to build a wall. What does that show you? Why do they have to build a kotel? A kotel is a high wall. Maybe they should build small pegs? No: once they have agreed, you can force the fellow to build a kotel. Why? Because hezek re'iyah is a hezek.
Let’s establish the distinction between the two leshonot, rabotai. “Bonim et hakotel be'al korchan” (they build the wall against their will); “alma hezek re'iyah shemeh hezek” (apparently, damage by being seen is considered damage). Let’s go slowly again. According to the first shitah, what did they have to build the wall together for? They could build whatever they wanted; no problem. If they agreed, what is the question? The question is the diyuk: “Ha lo ratzu.” One fellow cannot force the other to put up a wall, because the other fellow will say, “You want to put up pegs? Put up pegs. I do not want to put up a wall.” What does that have to show? “Hezek re'iyah la shemeh hezek.” Understand?
The second view says, “No, they were not discussing the wall. The wall is automatic. Once you agree to make a division, the next move is a wall.” The other fellow cannot say, “I do not want a wall. What is this wall for? I only want pegs.” What does that show? Once they agree, the rule is automatically that you build a wall, because hezek re'iyah is a hezek. Why a wall? Because I cannot see you, and you cannot see me. Mesipas are small pegs, through which everybody can see one another’s business. So there is no argument: all you need is the two partners’ acquiescence. Once they agree to divide, there is no question that a wall is the way to go. They do not have to agree on the wall; they only have to agree that they want to make a chalukah. Once they agree to a chalukah, the other fellow cannot say, “Why are you building this giant wall?” The answer is, “It is a hezek.” If everybody is mochel (waives the claim to) the hezek—“I do not have a problem”—then there is no problem.
Where do you learn the hezek from the word pelugta? I do not know. Where do you learn the word hezek? It is very simple: read the Mishnah. “Hashutafin sheratzu la'asot mechitzah.” What does mechitzah mean? “Pelugta.” What does pelugta mean? Division. Beautiful. Now continue reading the Mishnah: “Bonim et hakotel.” What is a kotel? It is a big wall. What do you have to build the kotel for? Maybe they could build something small. They have no choice. Beit din will tell you that you must build a kotel here, and the other fellow cannot stop you. How do you translate mechitzah? A fence. Exactly.
According to the first interpretation, the whole discussion is whether to build a wall: “Hashutafin sheratzu la'asot kotel bechatzer, bonim et hakotel” (partners who wish to build a wall in the courtyard build the wall). That is what the first shitah would say. The whole discussion is whether to build the wall, implying that without agreement to build the kotel, you cannot build it. Why not? “Hezek re'iyah lav shemeh hezek” (damage by being seen is not considered damage).
The second opinion says that the shutafin agreed to make a division; that is what they decided. Once you decide to make a division, the next step is automatic. You do not need anyone to agree on how to solve the problem. How do you solve a problem of chalukah? You put up a wall. Why would the other fellow say, “What is this wall? I only wanted to put up mesipas, some pegs”? No, “hezek re'iyah shemeh hezek” (damage by being seen is considered damage). That is the nafka minah (practical difference) between the two ways of learning the Mishnah.
Rashi says, “Pelugta, bechalukat chatzer shehushvu da'atam lecholka” (division means dividing a courtyard when they have agreed to divide it), “uchegon shelo hayah bah chet amot kedei lazeh uchedei lazeh” (for example, it did not have eight cubits for each one). Rashi gives an okimta (case limitation). We are talking about a small chatzer, where there is not enough space for each one to get eight amot. Normally, we have a rule that as long as each one can get four amot, it is considered divided. But here the case is, “shelo hayah bah chet amot kedei lazeh uchedei lazeh,” “she'ein ha'echad yachol lakof et chaveiro lecholka” (there were not eight cubits for each, so one cannot compel the other to divide it). You cannot force a fellow to divide a very small property. I need to share it with you. What are you giving me? What can I do with that small amount?
In that case, you need permission. Otherwise, they will say, “It is shared property. Why do I need your permission?” Rashi says we are talking about a property so small that one fellow cannot say, “I want a division; you are hurting me.” Exactly: I cannot park my car or get in there. It is too small; you are not giving me space. “Lefi she'ein ha'echad yachol lakof et chaveiro lecholka, ulehachi tani sheratzu” (because one cannot compel the other to divide it, therefore it teaches that they agreed). That is why the Mishnah says “sheratzu.” So then the question is, what if they did not agree? No, “lo ratzu” will not work in this case. It is davka sheratzu: “shekeivan sheratzu lecholka, bonim kotel avanim al korcham” (once they agree to divide, they must build a stone wall against their will).
Now they are stuck. They agreed to split it, so they have to build a wall. Why? “De'i ba'i, chad amar, ‘I efshi biyetzi'ah zo, ela bemesipas’” (if one wishes, he can say, “I do not want this expense; I want pegs instead”). “What are you putting this giant wall here for? I am not interested in this expense.” Yetzi'ah (expense) means expense. I do not want to pay for this; a wall is more expensive. Let’s do it cheaply and put up mesipas. But “ein shomin lo mishum hezek re'iyah” (we do not listen to him because of damage by being seen).
So we have a fantastic machloket here. When you teach this Mishnah to your kids, you have to read, “Hashutafin sheratzu la'asot mechitzah.” According to one opinion, it means they decided to make a kotel. They decided on a kotel? Fine, make a kotel. That implies that if they did not decide to make a kotel, one cannot force them to make one. Why? Because there is no hezek. The Mishnah uses different words, mechitzah and then kotel. The Gemara is going to discuss the lashon of the Mishnah. It is basically redundant: the Mishnah could have said, “Hashutafin sheratzu la'asot mechitzah, bonim.” Why say, “La'asot kotel, bonim et hakotel”? That is the whole discussion. The Gemara is going to discuss that law. Stay tuned.
Yes, a question: in the case where they are splitting, why do we have to hinge it on hezek re'iyah or not? Why not say they are splitting because they want to part ways, put up a wall, and that is it? They do not want to deal with each other. But a wall is more expensive. They could do it cheaply; no problem. Put up a fence, a picket fence. A picket fence with holes in it, a chain-link fence—exactly. Cheaper; that is the point. They can make a chalukah with a cheaper, see-through fence. The fellow can complain, “No, you cannot do that. A see-through fence will not work.” Once they have agreed to make a chalukah, then the rules apply. The rule is that you build the thing. Why? Because there is damage. “I want privacy.”
“Didn’t we learn elsewhere about hezek she'eino nikar” (unrecognizable damage)? What does eino nikar mean? “Damage is not recognizable.” No. That could be regarding objects. Hezek she'eino nikar could be when a person makes someone else’s terumah impure, or something like that. But here it is a privacy issue. These are laws of dwellings. In laws of dwellings, this is a different type of hezek. I need privacy. If a fellow is looking over my fence, I cannot do anything; I cannot sit outside. This is a new type of hezek in dwellings. We call it hezek re'iyah. We can understand that, too: if I am sitting on my porch or my roof and a fellow is looking over my roof, that is hezek re'iyah. Why not? Hezek she'eino nikar is different. You need privacy, private property, no trespassing. That is a different type of hezek.
The Gemara says, “I hachi” (if so): if the Mishnah saying that they want to make a mechitzah is talking about a chalukah, “hai sheratzu la'asot mechitzah, sheratzu lachatzot miba'ei leih” (it should have said that they wished to divide). That is a good lashon. Lachatzot means to divide; mechitzah sounds more like a wall.
“They want to make a division.” “That’s right. The right word for that is lachatzot.” “Split—that’s a verb.” Right, lachatzot is a verb. They want to split, to divide. Two shutafin: what do they want to do? Mechitzah is like the result, the noun. “They want to make a division line.” I am not a grammar expert. The Gemara is saying that the better word is lachatzot. I am not going to fight with you about that. The Gemara says the better word would be lachatzot. Okay.
Now the Gemara says, “Ela mai?” (rather, what does it mean?) Go back to the first opinion. “Ela mai, guda?” So “bonim et hakotel, bonim otah miba'ei leih” (it should have said, “They build it”). This was the question: you say, “Shutafim sheratzu la'asot mechitzah,” meaning a kotel, “bonim et hakotel.” Why say kotel twice? Just say “bonim otah.” We know what you are talking about; it is the same item. The Gemara says, no: “i tana otah” (if it had taught “it”), I would have understood the Mishnah completely differently. “Hava amina bimesipas be'alma” (I would have thought it meant an ordinary partition of pegs). I would have thought you could get away with a mesipas, a see-through fence, a small fence. “Ka mashma lan kotel” (it teaches us that it is a wall).
What does that mean? Rashi says, “Hava amina bimesipas be'alma, mayiri matnitin, de'ihu nami mechitzah ikri” (I would have thought it meant a simple partition of pegs, since that is also called a mechitzah). When you call it mechitzah, it can mean a full wall, or it can mean mesipas. You can get away with that word too: mechitzah. “Desharatzu dekateni,” because when the Mishnah says ratzu in the first clause, “achalukah ka'ei” (it refers to division). I would have understood it as referring to chalukah, to the case where they have to agree to divide it. When it says to make a mechitzah, I would have understood it to mean a mesipas. “Ka mashma lan kotel.” No, from there I learn kotel. “Veratzu dekateni mishum kotel” (the Mishnah says they wished because it is about a wall). If I did not have the word kotel in the second clause, I would not know what mechitzah means. The lashon kotel in the second clause reveals what mechitzah means in the first clause. Understand? If I only had the word mechitzah, it could mean kotel or chalukah. No: they compel him to put up a kotel. Why did they say kotel? Because they must be talking about a kotel. Otherwise, I could have understood the first mechitzah to mean chalukah, and the second mechitzah to mean that they compel them to put up even a small partition. “Ka mashma lan”: from the second word, kotel, I learn that the first word must also mean kotel. They can only put it up because, generally speaking, hezek re'iyah is not considered a hezek. That is why they can put up the wall only when they agreed; if they did not agree, you cannot force the issue.
“Ratzu la'asot kotel, hayu bonim oto” (if they wished to make a wall, they would build it). Why use the word kotel instead of mechitzah? Why use a different lashon? Just use the same word. The Gemara is going to conclude that mechitzah really means chalukah. The Gemara is going to tell us that; it is left open for that. The Gemara is really saying that this answer is not the best answer, as we said before: “usvaruha.” It is almost going to be rejected. Mechitzah is left open for the other interpretation.
The Gemara says, “Bonim et hakotel ba'emtza.” We both agreed to put up a wall. Fine, put it up. Ba'emtza means that you split it: half on my property, half on yours. Of course—that is obvious. Where else would you put it, on Reuven’s property? Why should it be more on Reuven’s property than on Shimon’s? “Lo tzricha, dekadim chad veratzyei lechaverei” (it is necessary in a case where one went first and the other agreed). One fellow took the initiative. Reuven went to Shimon and said, “Do me a favor. I want to build a wall. Would you let me? Listen, I want some privacy.” The other fellow says, “Okay, do it.” Yes, boys. Exactly, people look at other things.
I might have thought, “Mahu deteima matzi amar lei” (you might have thought that he could say to him): “I gave you permission ‘ki etratza'i lach be'avira’” (because I agreed to give you airspace), “uvetashmishta lo etratza'i lach” (but I did not agree to give up space for your use). I agreed to give you some air, but I was not willing to give up space on my property for a big wall. I was willing to build a narrow fence. You asked me, “Please, I need a fence.” I said, “Build a fence.” Then I see big cinder blocks going up. What is this? It takes away from my tashmish. The thicker the blocks, the more space they take up on the ground; the more space they take up, the less use I have of my property.
You might have thought that, since they did not get together and discuss it, one fellow could later say, “No, no, no, lo nicha li” (I do not agree to this). I do not like this wall. “Ka mashma lan”—no. Rashi says, “Mahu deteima, matzi amar lei keshenitratzeiti lekabel mechitzah, mechitzah dakah nitratzeiti” (you might have thought he could say, “When I agreed to a partition, I agreed to a thin partition”), “ulme'utei av ve'avira” (to minimize the airspace), “kegon shel nesarim” (for example, boards). Nesarim means wood. “Shi'ur dakah vehezek re'iyah ein bah” (it is a thin measure, and there is no damage by being seen). You are right: it is not see-through; it is boards, so you do not need to bring in hezek re'iyah. “O timshoch ovi hakotel bechelkecha” (or you can draw the thickness of the wall onto your own property). No problem: you want to build a big wall? Put its thickness on your side. I only want to give up the minimum amount of property I have to. Either build it down the center with boards, which is cheap, or build it on your side and I will give you a sliver of my property for the line of the wall.
“Aval livnot kotel avanim av, ulme'utei nami tashmishtai, lo nitratzeiti” (but I did not agree to build a thick stone wall and diminish my use of the property). “Ka mashma lan”—no. So it is not peshita (obvious). When the Mishnah says, “Bonim et hakotel ba'emtza,” that is not obvious, because you might have thought the fellow who agreed could say, “I am not interested in ba'emtza.” “Ka mashma lan”: no, that is the agreement. Once he says you can build the wall, you build it as a full kotel, because that is the normal way of building. “I agree, but—” Right, he agreed stam, without qualification. Once he says, “I agree to build nesarim,” then that is what he agreed to; you cannot go against his will. But if he agreed stam, stam means a mechitzah.
Now the Gemara comes to this sugya. We have reached the main sugya of today, rabotai: hezek re'iyah. Good—hezek re'iyah. Is “vehezek re'iyah lav shemei hezek” (damage by being seen is not considered damage) correct? According to the first shitah, let’s read the Mishnah again. The fellow is making a mechitzah. What is a mechitzah? The shutafin who agree to make a mechitzah: mechitzah is a guda. They can build a guda, a kotel, only because they agreed. If they did not agree, a person cannot force the other to share the expense. You can build a wall on your property, by the way. On your property, you can do whatever you want. You want to build an iron fence or iron wall? No problem. But you cannot force the other fellow and say, “I am building this because you are mazik (damaging) me. I have no privacy.” Jump in the lake. “Hezek re'iyah lav shemei hezek.”
The Gemara says, “Is that so?” Now the Gemara will bring six proofs, six questions, against this position. Question number one: “Ta shema: Vechen beginah” (come and hear: and likewise regarding a garden). What did the Mishnah say? The same case regarding a garden. What is the question? It sounds as though, in a garden, the Gemara will later teach that even in a place where there is no minhag to put up fences, one fellow can force the other to put one up and share the expense. “Vechen beginah” would mean that this case is not exactly like the first case. In this case, you can force the other fellow to build a fence, even against his will. Why? Hezek re'iyah. So the Gemara says that this is a question. No: avanim, mechitzah, just as we said in the first clause, means a kotel. “Vechen beginah”: you can put up a kotel. The chidush (novel point) is that even in a place where the minhag is not to do so, you can force him. Why? Because of hezek re'iyah.
The Gemara says, “No, it is different.” What is different? The famous Gemara we learned in Metzia: “Ginah shani” (a garden is different), “kide-Rav Abba, de'amar Rav Abba, amar Rav Huna, amar Rav: Assur le'adam la'amod bisdeh chaveiro besha'ah she'omedet bekamotav” (as Rav Abba said in the name of Rav Huna, in the name of Rav: a person may not stand in his fellow’s field when it is standing in its harvest). What was that, kaf-zayin (twenty-seven)? Kaf-zayin. What do we say? You are not allowed to stand by a fellow’s field and watch him while he is harvesting. Why? Ayin hara (evil eye). The Gemara is saying, “No, this is different. This is not hezek re'iyah, which is about privacy. This is mamash a mazik. The ayin hara is a mazik. Do you think ayin hara is a small thing? There are arrows coming out of his eyeballs, and he is destroying your property. That is a hezek. Really, hezek re'iyah could be lav shemei hezek, but this is more; this is mamash a mazik. ‘Yesh mazik beyadayim, yesh mazik be'einayim’” (there is a damaging party with his hands, and there is a damaging party with his eyes).
We will go through the cases. Start with the ginah. The ginah is different. You can tell the fellow, “What is the privacy issue here? You are damaging my property by looking over here.” Rashi says, “Shelo yazikenu be'ayin ra'ah” (so he will not damage him with an evil eye). That is mamash—almost like physical hezek. The Me'iri says that. The Me'iri says, “She'ayin hara nechshav shemazik et mamono shel chavero, velachen hu chamur mehezek re'iyah” (the evil eye is considered to damage another person’s property, and is therefore more severe than damage by being seen). Ayin hara is considered hezek. So that is the first point: there is no question from ginah. Really, hezek re'iyah is not a hezek. Why can you force the fellow to help you with the garden? Because there it is mazik beyadayim, and mazik be'einayim.
“Veha vechen katani” (but it says “and likewise”): you have a problem. The Mishnah says “vechen.” What does vechen mean? The same reason, the same reason. We start with chatzer hashutafin, and then “vechen beginah.” That sounds as though whatever we said about chatzer applies to ginah too. We are saying about the chatzer that it is only when they agree; “ha lo ratzu,” if they do not agree, no. Here we are saying that even if they do not agree, yes. So it is not “vechen.” The Gemara says, “No, agvil vegazit” (it refers to gevil and gazit). It is only about the materials: what type of wall. They are definitely different. In the case of the ginah, one fellow can build a wall without the other’s permission, and the other has to partner in the cost. The chidush is because it is direct damage. “Vechen” teaches that the materials follow the minhag of that town. If they use gevil, a fellow cannot say, “I want gazit.” That is what it means. The cases are different in law. In a regular chatzer, it is not direct damage; it is only hezek re'iyah, because there is no wheat in the chatzer and no ayin hara. What is the fellow doing there? He has his bicycles and lawn mower. What does he have there? Nothing. But in a field at harvest time, there is wheat. It is a ginah, a garden. So do not show off the garden to people; they may give it an ayin hara and affect how it grows. You have to keep the garden under lock and key.
The Gemara says, “Okay, ta shema.” We are trying to prove from Kama that hezek re'iyah is not a hezek, but the case is ayin hara, which is a hezek. You did not hear what I said? I answered that question. The Me'iri says that hezek re'iyah is when you are looking at someone’s property and it is about privacy. Ayin hara is a mazik. I am burning him; there are arrows coming out of my eyes. If I am looking at the fellow’s wheat, that is a higher level of hezek. It is a mazik, like taking something and burning it. I can burn something with my eyeballs. When I look at the wheat, that is hezek re'iyah, where it is spiritual. No, this fire comes out of your eyes and burns the fellow’s field down. That has nothing to do with hezek re'iyah; that is hezek beyadayim, hezek be'einayim. It is a different, higher level of hezek. “Yesh yesh hezek re'iyah veyesh ayin hara” (there is damage by being seen, and there is the evil eye). “Eino domeh zeh lazeh” (this is not like that). Ayin hara is worse.
I once told you that Rabbi Matityahu Salomon, alav hashalom, told me this. We were together in Azerbaijan. “VehaRav Matityahu Salomon pa'am amar li haRav, vesha'al oti: ‘Lamah haRav Natan Tzvi Finkel, alav hashalom, Rosh Yeshivat Mir, lamah hitzliach kol kach, sheyesh lo yeshivah kol kach gedolah?’” (Rabbi Matityahu Salomon once said to me, and asked me, “Why did Rabbi Natan Tzvi Finkel, peace be upon him, Rosh Yeshivat Mir, succeed so much, with such a large yeshiva?”) He said to me, “Leshitato, biglal she'af echad samu alav ayin hara. Shezeh hayah choleh, hayah merutak kol hayom, az tireh,” hu amar li, “tireh, mi shehu, ein ayin hara, ein hara, tireh eich eifo hu yachol lehagia” (according to his view, it was because nobody gave him the evil eye. He was sick and bedridden all day, so, you see, when a person has no evil eye against him, see how far he can get). Rabbi Matityahu Salomon said that nobody gave him an ayin hara. Normally, you see a person with a big yeshiva and people think, “Oh, how many people, how much money?” Nobody wanted his life, because he could hardly—It is amazing. He said that because of this, he became the head of the biggest yeshiva. So you see how much damage ayin hara causes.
Fine. “Ta shema: Kotel chatzer shenafal, mechayvin oto livnot ad arba amot” (come and hear: if a courtyard wall falls, they compel him to rebuild it to four cubits). There is a kotel, an existing wall, and it collapses. The two sides have to come back and build it together up to four amot. The Gemara asks: what do you have to build the wall for? You are forcing them to build it, so you see that hezek re'iyah is a hezek. But the answer is that this is no proof; there was already a wall there. Why do they have to build the wall? Because that is the arrangement they had. The Gemara says, “Nafal shani” (a fallen wall is different). You have no proof about hezek re'iyah; “nafal shani,” it is different.
The Gemara then says, “Udekari lah mai kari lah?” (and what was the question he asked?). What was the hava amina? You see a beraita—or was it a Mishnah? It is a Mishnah—and it says nafal. Did you not know this distinction? It says nafal; the wall was already there. If it was already there, then when it falls, even if you say hezek re'iyah is not a hezek, you have to put the wall back up anyway, because it was already there. How could you prove anything from this case? You want to prove that they have to put up the wall because of hezek re'iyah? No: “Lo mishum hezek re'iyah” (not because of damage by being seen). Why do they have to build the wall? Because it was there. What was the question? “Udekari lah mai kari lah?” What was the hava amina? Do you understand the Gemara’s question?
The Gemara answers: no, really it should make no difference. “Nafal lav davka” (the fall is not essential). “Hu hadin” (the same law applies) lechatchilah, from the outset. Why, then, did it say nafal? “Seifa itztericha leh” (the latter clause was needed): “Arba amot ulema'lah ein mechayvin oto” (they do not compel him to build above four cubits). That is the chidush. Let us say there was a ten-amah wall between the properties and it fell. The neighbor cannot force the other fellow to build it back to ten; he only has to build up to four amot, and that is it. That is a chidush, and it is a chidush only in a case where the wall fell. If you are building lechatchilah, of course you decide how high to build it. The chidush is that even though the wall was ten amot, you do not have to rebuild it that high. That is why it says nafal, but “hu hadin,” even if it did not fall, the same law applies lechatchilah.
Why, in the lechatchilah case, are you building a wall? That was his question. Could it be talking about a case where they both agreed to ten amot the first time? Exactly. Even if they do not—no, the chidush is—First time, yes. First time, yes. And then it falls. You know what? That was too high. Right, because once you get to four amot, it is fine. Five, six—it does not make a difference anymore. For whatever purpose you need four amot, there is no difference between four, six, and ten. If it was there already, fine, but you cannot charge me for that.
Look at Rashi. Rashi says, “Seifa itztericha,” “kelomar hu hadin nami mei'ikara” (the latter clause was needed; that is, the same law applies from the outset). What does mei'ikara mean? “Hu hadin,” if it was from the beginning. Not only if it fell; “hu hadin mei'ikara.” Why, then, did it give me the case of a fallen wall? “Dehai diktani nafal zu ve'ein tzarich lomar zu,” “le'ashmi'inan deyoter midaled amot ein mechayvin,” “ve'af al pi sheharishon hayah gavoha yoter, al korcho, lo mechaybinan leih” (it teaches the case of a fallen wall, and need not state the other case, to teach us that they do not compel him to build higher than four cubits, even though the original wall was higher). Good. So we have no proof. We have no proof from any of this. That was just explaining the hava amina, what he thought.
The Gemara says, “Ta shema: Kofin oto livnot beit sha'ar vedelet lechatzer, shema minah hezek re'iyah shemeih hezek” (come and hear: they compel him to build an entrance structure and a door for the courtyard; we can infer that damage by being seen is considered damage). People live in a chatzer. There is a doorway, and everybody walking by can see into the courtyard. So we force the people in the chatzer to build an entrance structure that blocks the view from the reshut harabim (public domain), so people cannot see in. Instead of having an open doorway, it juts out into the reshut harabim in a circular way and then goes back in. It obstructs the view of what is happening inside. The picture is like this: there is a straight line, and then it goes around like this and comes out like that. What do you see? You are forcing me, making me pay to build this wall. Why? I do not want people to see me. That is hezek re'iyah, so you see that you can force them.
Rashi says, “Beit sha'ar, shebonim kotel neged hasha'ar” (an entrance structure: they build a wall opposite the gate), “agol saviv” (curved around), “ve'osim be'oto hekef petach katan min hatzad” (they make a small entrance at the side of the surrounding wall), so they cannot see, “mishum hezek re'iyat benei reshut harabim shelo yir'u toch hachatzer” (because of the damage caused by people in the public domain seeing into the courtyard). What do you see? “Hezek re'iyah shemeih hezek.” The Gemara answers, “Hezeka derabim shani” (public harm is different). So there is hezek re'iyah and hezek re'iyah. One, two, or three people looking at you is not considered a hezek, but the reshut harabim is a lot of people. The exposure to the reshut harabim is too much, and therefore we can distinguish between kinds of hezek re'iyah. Now we have refined it: hezek re'iyah in a place where there are many people is considered a hezek. You understand? We need that for his sevara.
The Gemara asks, “Fine, deyachid lo?” (So for an individual, it is not a hezek?) “Ta shema,” later on, daf yod-alef: “Ein cholkin et hachatzer ad sheyehei bah daled amot lazeh vedaled amot lazeh” (they do not divide a courtyard unless there are four cubits for this one and four cubits for that one). What did we say? We saw it in Rashi. You cannot force a division of a chatzer unless each one will be left with four amot. What is the logic? If it is six amot, then if I divide it, I get three amot. What can I do with three amot? I cannot do anything. If we keep it as one six-amah chatzer, at least we can use it, sharing it together. But you cannot force a division that leaves me with a tiny property.
Rashi says, “Ha yesh bah kedei lazeh uchedei lazeh” (if there is enough for this one and enough for that one). If it has four amot for each side, “cholkin” (they divide it). What does cholkin mean? You can force the other fellow to put up a wall. These are individuals. Right, that is the Gemara’s answer. “Mai lav bechotel?” (Does this not mean with a wall?) I do not know—what is it? A kotel. And that is yachid. So you see, “hezek shemeih hezek afilu beyachid” (damage is considered damage even for an individual). The Gemara answers, “Lo, bemesipas be'alma” (no, it means an ordinary partition of pegs). Who told you it means a mechitzah? Maybe it means mesipas, just pegs. That is all it says, so we cannot prove anything from it.
The Gemara continues: “Ta shema” later on, chaf-bet: “Hachalonot” (Hachalonot, The Windows). This happens all day long with properties. A person has a property, and he builds right next to his neighbor, whose windows are there. The neighbor is going crazy: “What are you doing? First of all, you are blocking my light.” People say, “That is bogus; you do not own the sun.” But the Gemara will say that there is an inyan (matter) here: if a person has light and you build right against his property, so the sun cannot come into his window, there is an issue. We will discuss how, when you build a wall on your side of the property, it cannot be next to the window. The wall has to be either four amot higher than the window or four amot lower than it, because we do not want it to be easy for the fellow to jump onto his wall and look into the other fellow’s window. If it is above, he cannot climb up; if it is low, he is too low to see in.
What do you see here? These are windows and private properties. It is yachid (an individual), and we do not want this individual looking into the other fellow’s property. So we see hezek re'iyah even in a yachid. Let’s read the Gemara: “Ta shema: Hachalonot,” the windows in his wall. A person wants to put up a wall next to his friend’s window. “Bein milema'alah bein milematah uvein miknegdan arba amot” (whether above, below, or opposite, it must be four cubits away). It must be four amot higher than the window, four amot lower than the window, or four amot away from it. “Detanya alah: Milma'alan, kedei shelo yatzitz veyir'eh” (it was taught about this: above, so he will not peer in and see); we do not want him jumping on the wall and looking into the window. “Milmatan, kedei shelo ya'amod veyir'eh” (below, so he will not stand and see); we do not want him standing on the wall and looking up. “Kenegdan, kedei shelo ya'afil” (opposite, so he will not darken it); we do not want it to make the window dark.
What do you see? Hezek re'iyah? “Hezeka debayita shani” (damage involving a house is different). Residential property is different from a field. A courtyard is outdoors. But not when a fellow is peering into another person’s window. We are making distinctions between hezek re'iyah involving a bayit (house) and a chatzer.
Rashi says, “Hezeka debayita shani,” “she'adam oseh beveito devarim hatzenu'im” (damage involving a house is different, because a person does private things in his house). As you said, people get dressed and do private things in their house. The fellow has a right to claim privacy in his house. What if the neighbor built a pool in his backyard? That happened to me in my backyard: he built a pool with no fence. From my backyard, you can see right into his pool. That is terrible. Can I force him to build a fence? I have this case right now. Call the township; they will make him put up a fence. That is terrible. That is a reverse—That is right on my mind right now. He built a pool and there is no fence. Is it dangerous? Yes, but it is “lo taturu” (do not follow your eyes). You want to be religious? Build the fence. I may just build it myself anyway. It is an interesting case. It happens a lot: people expose themselves to their neighbors. So, as you said, do not look. Put up a fence and protect yourself. Interesting.
Another case: “Ta shema: De'amar Rav Nachman amar Shemu'el: Gag hasamuch lechatzer chavero” (come and hear: Rav Nachman said in the name of Shemu'el, a roof adjacent to another person’s courtyard). There is a roof next to the chatzer, and the fellow can look from the roof into the courtyard, as in your case with the pool. The person on the roof looks at the person in the chatzer: “Hey, morning, Jack. How are you doing? How does it feel?” “Get out of here. What are you looking at me for?” The text says, “Oseh lo ma'akeh gavoha arba amot” (he makes a parapet four cubits high). He has to build a fence four amot high. What do you see? Hezek re'iyah. Do not tell me it is a house. It is not a house; it is outdoors. And this is not rabim; it is a yachid. Still, we are saying that the fellow on the roof has to build something to protect the neighbor from his eyes.
What does Rashi say? “Ma'akeh gavoha arba amot kedei shelo yir'eh bachatzer chavero keshehu mishtamesh begago” (a parapet four cubits high so that he will not see into his fellow’s courtyard while using his roof). When he is working on his roof, we do not want him looking into the fellow’s chatzer. Therefore, he is forced to build a ma'akeh (parapet). That is why hezek re'iyah. He has to build a ma'akeh anyway, but not that high. Right, ten tefachim.
“Shani hatam” (that case is different). There is an unbelievable sevara here. What is different? “De'amar leh ba'al hachatzer leba'al hagag: Ledidi kevi'a li tashmishi” (the courtyard owner says to the roof owner, “My use of the courtyard is regular”). “I work in my field—you know, in my chatzer—all day long. I am in and out all day.” “Ledidach lo kevi'a lach tashmishach” (your use is not regular). “You do not go on your roof all the time. So ‘velo yadana behei idana salikat ve'atit’” (I do not know when you go up and come down). You do not have set times to go onto the roof; it is a temporary use. I am always going back and forth in my chatzer. In a case where we know someone is always using the other side, you are careful not to do private things because you know people are there all the time. But I do not know when you are going on the roof. I may be doing private things without thinking that you are there, and then you are on the roof. In that case, he can demand the fence, because things are not equal.
Look at Rashi. He says, “Velo yadana behai idana deka atit letashmish le'ishtamush begagach” (I do not know when you are coming to use your roof). “De'itztana minach” (so I will be careful because of you): I do not have a problem being private when you are out there, because I do not know when you are out there. I am doing private things, and suddenly you decide to come out at 2:00 in the afternoon. It is random. You never come out at 2:00; it is a roof, with no set time. With a shared field, where we are always outside, I always know to be on guard. I am on guard, so I am not worried about that. That is not hezek re'iyah. Just tell him, “Be on guard all the time; pretend I am on the roof all the time.” But that is not how the Gemara sees it. It does not work like that, because I know you do not go on the roof all the time. You cannot tell me that I should think that way. I have work to do. What are the odds? He never came out at 2:00. So I start gardening and take off my shirt. “Hey, good morning, Jack! Where did you come from? You never came out at 2:00!” Then he shows up. “Because I do not know when you will come, I am always on guard.” That is hezek re'iyah.
Rashi says, “De'itztana minach divrei hatzne'a. Aval chatzer hachalukah letarvaihu, kevi'ah tashmishtei lechol chad begavah kol sha'ah, velo avdei bah milei ditzna'a” (I will be careful to do private things because of you; but in a divided courtyard, each person uses his part regularly all the time, and they do not do private things there). I will never take off my towel because I know there is always someone there. But if I think I can sometimes be less discreet because I do not think someone is watching, I will be less discreet, and that is a problem because the fellow is watching me. Therefore, put up the fence.
So, bottom line, we brought six attacks against the opinion that hezek re'iyah is not a hezek, and we did not prove it. We conclude that the only reason we forced them to put up a wall is that they agreed. If they did not agree, you cannot force the other neighbor to pay for a wall. He cannot claim, “Hezek re'iyah! I want privacy!” I do not have to pay for that. I will put up a screen or a mesipas, small items. The cases the Gemara brought are different: a house is different; a reshut harabim is different; ayin hara is different; and a roof is used sporadically. In every case the Gemara brought, we worked out the distinction, and therefore we have no re'ayah.
“Baruch Hashem le'olam, amen ve'amen.” Amen ve'amen. Ayin hara, start! We’re in the game.