Where did we end up yesterday? Top line, ta shema (Come and hear)? All right, let's go slowly. We should have filled up the mikveh (ritual bath) last night in Brooklyn with all that rain. It rained all day in Brooklyn. We have to check the mikveh. Going to Brooklyn today, someone? Going to check it out, please? We just learned yoma detitsech bei mitra. No, but I asked. I'm telling you, it's the first. Usually give them Sunday night.
Gentlemen, let's begin. The Gemara in Bava Batra, daf vav (page six), the masechet (tractate). We pray for a refuah sheleimah for Shimon ben Simcha: E-l na refa na lo (God, please heal him). A refuah sheleimah for Ester bat Sarah Simcha, zera chaya vekayama (living and enduring offspring), and hatzlachah (success) for Moshe ben Sarah Simcha, Torah and veyir'at Shamayim (and fear of Heaven), yizkeh lechupah tov bekarov (may he soon merit a good wedding canopy). Amen.
We begin today's daf on daf vav. We start from the ta shema. We have a case. What was the discussion? We are actually up to the second ta shema, about seven or eight lines down. What's the issue? The question is whether we say a migo (legal inference from an alternative claim) against a chazakah (presumption).
We said that we have a chazakah: ein adam porei chovo betoch zemano (A person does not repay a debt before it is due). Suppose the tove'a (claimant) comes after the zeman (time) and the other person says, “I paid you betoch hazeman (before the due date).” Normally, he is not ne'eman (believed) to say that he paid before the due date, because we have a chazakah. But here he has a migo: mah lo leshaker—if he wanted to lie, he could have said, “I paid you already,” when it was already le'achar zeman (after the due date). Therefore, even though he said he paid before the due date, he should be believed because of the migo. Do we say that or not?
We try to bring re'ayot (evidence) to answer whether you say a migo against a chazakah. The Gemara says, ta shema. These are all cases from the Mishnah, by the way. We said that when they build or rebuild a wall, the partners only have to build it up to four amot (cubits). Anything above four amot, they do not have to share. Ta shema: me'arba amot ulema'lah ein mechayevin oto (Above four cubits, they do not obligate him), unless he shows that he is interested in the addition. He shows that by putting another wall beside it, so he can eventually use both walls and put a roof on top. Samach lo kotel acher (He placed another wall beside it). Then we assume that he is nicha leih (he is pleased with it), and therefore he is bechezkat (presumed to be) a partner in it.
The proof in that case is the reverse. We assume that he did not pay until he brings re'ayah—proof—that he paid: ad sheyavi re'ayah shenatan (until he brings proof that he paid). That is the reverse of the reisha (first part). In the reisha, if he is a partner, we assume he paid until the other person brings proof that he did not. Here, it is the opposite: he has to prove that he paid. Until he brings proof, he has to pay.
Heichi dami, what's the case? The Gemara says: ileima sheteva'o le'achar zemano (If you say he sued him after the due date), if this is a straightforward case where the wall was already built and the payment is due, and he says, amar lo peraticha bizmani—“I repaid you when it was due”—amai lo? Why isn't he believed? That's exactly a case where he is believed. It is after the payment was due, and he says, “I paid you when it was due.” He is believed. Aderabah (on the contrary), the proof is now on the other person, not on him.
Ela lav de'amar peraticha betoch zemani (Rather, is it not that he said, I repaid you before it was due?) So it must be a novel case. What case must the Mishnah be talking about? He came to him after the due date and said, “I already paid you,” and it still says the burden of proof is on him. Obviously, we do not say the migo. Therefore, alma bimkom chazakah lo amrinan mah li leshaker (Thus, where there is a presumption, we do not say, what reason would he have to lie?).
The Gemara says, “No. Shani hacha (This case is different). It could be that there is a migo, but not in this case, because he says, mi yimar dimechayevei li rabanan (Who says the Rabbis obligate me?).” He is not sure that the rabanan (the Sages) will mechayev (obligate) him for this additional wall, because it is not known to everyone. Just because you add another wall beside it, is the Beit Din (rabbinical court) going to obligate him? Therefore, when he says that he is porei betoch hazeman (repaying before the due date), he does not have a migo. What is the migo? That he could have said, “I paid you now.” But he would not say that, because he does not know that he has to pay. The whole migo falls away. He is not believed to say, “I paid you now,” either, because he does not think he has to pay. This person is not paying the debt until the Beit Din summons him. So perhaps we really do have a migo in general, but in this case there is no migo available. You have no proof from this case, because the case does not involve a migo.
“He says he paid, but the burden of proof is on him.” Right, but what is the migo? Is the migo that he paid before the due date, or that he paid after the due date? He does not have a migo to say he paid after the due date in this case. Therefore, the burden of proof is on him. When he says this, we tell him, “Bring proof.” We do not believe him. That is the point.
The Mishnah says, eino ad sheyavi re'ayah shenatan (He is not liable until he brings proof that he paid). What happened to the migo? If it says that he must bring proof, there is no migo? No, there really would be a migo, but in this case he is not ne'eman, because you are not believed to say even now that you paid. Right, because we have a chazakah. That's right. What is the migo here? He could have said that he paid bizmano (when it is due). He would not pay bizmano in this case. Paying when it is due happens only when you think you have to pay. If you do not think you have to pay, you do not have that chazakah. He is not aware bediyuk (precisely), so he is not going to pay until somebody from Beit Din comes and hits him over the head.
Rav Acha, the son of Rava, said to Rav Ashi, ta shema. Now we move on to Shevuot. Maneh li beyadecha—the Gemara's way of saying, “You owe me a hundred bucks.” Maneh li beyadecha, “My hundred is with you.” He says to him in front of edim (witnesses), hen (yes). What more do you want than that? He said, “Yes, I owe you the hundred.” Lemachar amar lo teneihu li (The next day he said to him, give it to me). I don't know why he waited until the next day; a lot can happen in a day. But he waited, and then he says, “All right, give it to me.” Im amar netativ lach (If he said, I gave it to you in between), he is patur (exempt). Why is he exempt? Even though yesterday he admitted it, now he is believed. I suppose it is because the payment was due. Once it is due, he is believed to say, “I paid it.”
Ein lecha beyadi chayav (You have nothing with me): he comes along and says, “No, no, you have nothing with me.” The Gemara wants to understand that case. The day before, he said, “I owe it; you're right,” hen, in front of witnesses. Now, all of a sudden, the next day he says, “You have nothing with me.” Mah perush (What does it mean?) Mai lav—what does it mean here? The first case, netativ lach, means he said, de'amar lei pera'ticha bizmani—“I paid you when it was due”—and he is believed. So ein lecha beyadi must mean de'amar lei pera'ticha betoch zemani (He said to him, I repaid you before it was due). All right, that is the hava amina (initial assumption): “I already paid you,” meaning, “You have nothing with me because I already paid you.” Vekatanei chayav (And it teaches that he is liable). What about the migo? We do not say the migo. Alma bimkom chazakah lo amrinan mah li leshaker. It is the same case: after the due date he is believed; before the due date he is not believed. But now it is after the due date, so why don't we have a migo and say, “I paid you now”? There is no migo, because we have a chazakah.
No. What is the second case of ein lecha beyadi? Lo hayu devarim me'olam (These things never happened), lahadam (abbreviation for the claim). He is machchish (denying) the whole thing. But now you soter (contradict) your testimony from yesterday; that is the point, so he is chayav leshalem (liable to pay). We have witnesses from yesterday that you testified that you owed the money. If a person comes along and says lo laviti—“I did not borrow”—that is already not believed. De'amar mar (For the master said), kol ha'omer lo laviti ke'omer lo parati damei (Whoever says, I did not borrow, is considered to have said, I did not repay). In a case where he admitted it the day before, when he says, “I did not borrow,” it is as if he is saying, “I did not repay.” So this case is not talking about parati betoch zemani (I repaid before it was due). If he had said that, maybe he would have a migo. Here he is saying, essentially, “I never borrowed.” Since he already admitted that maneh li beyadecha, saying “I never borrowed” is like saying, “I did not pay.” Therefore, he has to pay.
Peshita—very simple. What is the chiddush (novel point)? Tosafot asks a different question: why does the Gemara need to bring in all this lamdanut (Talmudic reasoning), kol ha'omer lo laviti ke'omer lo parati? It is simple. The day before, the person said, “Yes, I owe you the money,” with witnesses. Why bring in this reasoning that when he says lo hayu devarim me'olam, it means lo laviti, and when a person says he did not borrow, it means he did not repay? Yesterday he admitted that he owed the money. What changed?
Tosafot asks, Hala tzorech be'hava'at klal zeh—what is this klal (principle) helping me with in this story? Kan klalo rak nitzrach lechlal zeh (Here, this principle is needed only for this case): shebitechilah ta'an shelo lavah (At first he claimed he had not borrowed), ve'achar kach ta'an shepara (and afterward he claimed he had repaid). In a case where at first he claimed he had not borrowed and afterward claimed that he repaid, once he claims repayment, that means he had borrowed. So it is as if he is saying, “I did not repay.” Bimikreh kazeh anu zekukim lechlal zeh kedei sheta'anato ha'acharonah shepara tehe mucheshet (In this case, we need this principle so his final claim of repayment is contradicted). In that case, the principle is needed to contradict his final claim that he repaid.
But aval bemikreh shelanu (But in our case), shehaloveh hodah bifnei edim befeirush (the borrower explicitly admitted it before witnesses) the day before, ve'eino ne'eman yoter lomar shelo lavah (and he is no longer believed to say he did not borrow). Im ken (if so), gam belo klal zeh alav leshalem (even without this principle, he must pay), mikeivan she'al kol panim eino to'en shepara (since in any event he does not claim to have repaid). He is not claiming that he repaid. He is basically saying lo hayu devarim me'olam. But he cannot say that; yesterday he said that they did happen. He contradicts himself.
Tosafot metartzim (Tosafot answers): shekavanat haGemara kan hayah rak lomar (The Gemara's intent here was only to say) she'ee efshar lefareish kavanat devarav (that his words cannot be interpreted to mean) lo laviti ke'ilu lo laviti lefi sheparati (as if to say, I did not borrow because I repaid). He is saying that when the person says lo laviti, you should not interpret it as, “I did not borrow because I repaid you.” If he said that, he might be believed. But do not interpret lo laviti that way. That is not the pshat (plain meaning). Lo laviti means lo parati (I did not repay), and he is not believed to say that after saying the day before, ken laviti (Yes, I borrowed).
“What's wrong with him paying between yesterday and today?” There is no problem with his having paid yesterday and denying it today. No, that is what Tosafot is saying: when he says lo laviti, it does not mean, “I did not borrow; in other words, I repaid.” Lo laviti means, “I did not repay.” Yesterday he said he owed it, so he is not believed, and he has to pay.
When he says lo hayu devarim me'olam, that is what he means: “I never borrowed the money.” He is not saying, “I never borrowed because I paid.” When the witnesses heard him acknowledge the loan, his present claim that he never borrowed is as if he is saying that he did not pay. “I didn't pay, so you have to pay.” Right. Do not say, “I don't have a loan because I paid.” That is Tosafot's point. It is not far-fetched to say that he paid, but he is not saying that. If he claimed that he paid, he would be believed in the appropriate case. Here he is saying that he did not have a loan, which means he did not pay it.
Anyway, we go back to the person with the wall. Now you need a little building knowledge. A person puts a wall beside the other person's wall, which the other person extended upward. Once he puts his wall there, it shows nicha leih. Now we have gilgulim (rolling liability): megalgelin alav et hakol (They extend the obligation to everything). We make him pay for everything, because now he is pleased with the addition. “Everything” means even the extension. Of course, up to four amot they both have to split the cost. The other person went above that, and this person could say, “I don't need to go higher. Four amot is good enough for hezek re'iyah (visual damage).” But once he shows that he is pleased with the extension, he has to contribute.
Rav Huna now discusses partial cases: samach lepalga (He placed it alongside halfway). Suppose the first person built a wall, and they partnered on the wall up to four amot. Let's call them Reuven and Shimon. Reuven went above four amot, so Reuven has to pay that bill. Then Shimon—or Nachum, if we want to call him that—puts his wall next to it, but only halfway up the extension. How much does he have to contribute?
The Gemara says samach lechulah (He placed it alongside the whole): that is considered as if he went all the way up. Rav Nachman says, lemay desamach samach lemay delo samach lo samach—for what he placed, he placed; for what he did not place, he did not place. The nafka minah (how much does he have to pitch in?) is how much he has to contribute. Rav Huna's reasoning is that he will continue. Why is it considered as if he placed it alongside the whole? He has already shown his intent. You do not have to wait until he finishes; he has started building upward, so he has to pay.
Shekeivan shehit'chil bivniyat kotel keneged kotel anu manichim shebesof yashlimenah (Since he began building a wall opposite the wall, we assume he will complete it). That is Rav Huna's assumption. The other view says, “For what he placed, he placed; for what he did not place, he did not place.” He went halfway up, so he pays for half, and that is all.
Umodeh Rav Huna (And Rav Huna concedes): now we come to the concessions, modim derabbanan (the Sages' acknowledgment). Rav Huna says that although he holds that palga (half) is kula (the whole), he concedes in the case of bekarna velufta (in the case of a corner and a projection). You need a picture book for this masechet. Let's work it out from Rashi. Biden, what's he talking? Karna means a corner; Bechibur shebekeren zavit (A connection at the corner). Suppose harei shehayah sof beito shel Re'uven davuk lekotel zeh shebein shtei chatzerot, ule'achar zeman nimlach Re'uven zeh vechiber binyan mu'at bekeren zavit shel sof beito (Suppose Reuven's house end adjoined this wall between two courtyards, and later he decided to attach a small structure at the corner of his house), uvlitat habinyan meshuchah keneged miktzat orech hakotel hamavdil bein hachatzerot (and the projection extends opposite part of the length of the wall dividing the courtyards).
What is the case? He built a wall perpendicular to the other one, jutting out at a corner. He did not build upward; he built to the side. What does Rav Huna concede in that case? That he might not finish it. You built it on the side, not upward, so we do not necessarily assume that you will continue. Modeh Rav Huna delimai dela samach lo samach (Rav Huna concedes that for what he did not place, he did not place), because she'ein binyan kazeh asui lehimashech (such a structure is not made to be extended). So he only pays for what he built. Perhaps he went a little into the other person's reshut (property domain); he pays for the amount he used. We do not assume he will continue.
“In the first case, he built another wall next to the one they built together, right?” Correct. “According to Rav Huna, even if he did half, it's the whole.” Right, because in that case he will continue upward. But in this case, he is not necessarily going to fill in the rest. It is not symmetrical. What he built may already be functional; perhaps it is there for support. We do not know how far he will go, and there is no indication that he will continue.
Umodeh Rav Nachman be'afriza (And Rav Nachman concedes in the case of a big piece of wood). What is an afriza? Rashi says etz aroch—a big piece of wood—and ve'av—thick—shenoten al pnei chol orech hakotel (which he places along the entire wall). Why does he place it on the wall? Lehani'ach alav rashei korot (To place the ends of beams on it). The wall is damp, and the damp stone can cause the beams to warp. So he puts a piece of wood on top of the wall to protect the beams. Umagen aleihem shelo yirkavu mechamat lachluch hakotel (It protects them from rotting due to the wall's dampness). In this case, Rav Nachman, who generally says that what was placed was placed and what was not placed was not placed, assumes that he will continue.
Uvikva'ata dechashorei (And in the case of beam sockets), where he makes holes in the wall to place beams—perhaps brackets or places to insert the beams—shemshalem chelko bechol govah hakotel (he pays his share for the wall's entire height). Sheken hachanot elu bakotel mar'ot shekavanato lehani'ach korot mikotlo lakotel harishon avur ritzpat aliyah, ve'az hu yagbi'ah et kotlo kedei leshamesh kotel lekomah elyonah (These preparations show his intent to place beams from his wall to the first wall for an upper-floor surface, and then raise his wall to serve the upper floor). It looks like he is building a foundation. Since he is preparing a foundation to build upward, we assume he will continue, even if he has not finished yet.
“We're not done yet. Amar Rav Huna bechavei (beam pockets). I thought bechavei meant windows.” The discussion is about the sockets in the wall, not ordinary windows. The picture shows places to put the crossbeams. “What are those?” “A place for the beams.” “Looks like windows to me.” “No, that's where you put the crossbeams in. Exactly. That's a spot for the beams. He's building holes over here, exactly, so he can stick the beams through it. It's not really a window, it's a beam. Chazak uvaruch, beam pockets.” Amar: sechiz... Yeah, this thing you put through that thingy. This is one of those kinds of gemarot (tractates of Gemara), rabotai (my teachers); you have to understand the cases.
Amar Rav Huna: bekava... la hevei chazakah—it is not an established presumption. What is the chazakah here? We are not talking about a presumption of three years. The person building the wall put in the sockets. That is not proof that the neighbor paid his share of the raising, or that he has established a right in the wall. Ve'ein hashachen yachol lit'on she'ilmalei lo hayah tore'ach kol kach (The neighbor cannot claim that he would not have exerted himself so much without him).
Rashi explains: la hevei chazakah. Shimon, who raised his wall, divided the courtyard above four amot and made chalonot (windows) facing Reuven. Reuven might say, “Look, you put the sockets on my side, so I must have been part of the deal.” But those openings are for placing the ends of beams, as explained. This does not establish a right for Reuven to say, “I helped you raise the wall.” He cannot say, “If I had not helped you, you would not have made those openings on my side of the wall, because then, when I wanted to lean another wall against it and put a roof on it, I would have had to give you permission.”
And although the person made himleta—facings—Hem nesarim avim, these are the big beams, thick beams, shenotnim betzidei hachalonot (which are placed at the sides of the windows), lehagen al rashei hakorot (to protect the ends of the beams), Reuven cannot say, “If I had not helped you, you would not have undertaken all this effort.” The point is that putting in these openings and supports for beams, which go through to the other side, does not prove that the neighbor paid his share of the raising.
Even though the person who built the wall made these frames for the beams, ein zeh hochachah shehashachen natan chelko bahagbahah (this does not prove the neighbor paid his share of the raising). The neighbor cannot claim, “You would not have done all this if I had not contributed.” The other person can say, De'amar lei (For he can say to him), Amina: ulechi fayas li, lo litrach ashita—I thought that when you were appeased, I would not have to trouble myself with the wall. In other words, I was doing this for the future. I put the openings in now, in case one day you agree to the height of the wall. It is easier to do it now than to damage the wall later.
The principle is this: even if what he did looks like a benefit to Reuven, the person who did not build the wall, Reuven cannot say, “You would not have let him do this unless I was your partner, so I have a chazakah in the wall too.” Shimon can say that he did it early because it was advantageous to him. If he waited until Reuven agreed, it would be harder and require more effort. So it is no proof that Reuven was a partner in the wall.
“I don't want my wall punctured after the fact.” He did it toch kedei beniyat hagbahah (during construction of the raising), while he was building the extension, because that was the best time to make the holes. But he did it al da'at (with the intention of) the other person agreeing in the future. From the beginning, exactly. The other person can claim that he did not want to weaken his wall by making holes in it later: Lo itztarech lekalkel kotli linkov bo chorim (I did not need to damage my wall by making holes in it). Lenachata shadei korat'cha (Go down and place your beam).
Rav Nachman says, achazik lehurdei—he established a right to place thin beams. This is an easier case. A person places thin beams on his neighbor's wall, and there is no dispute about it; everybody agrees that he has permission to use the wall for that. Lo achazik lechishurei (He did not establish a right to thick beams). That does not mean that he has permission to place thick, heavy beams. Just because he is allowed to use the wall for what he has been using it for does not mean he may use it for any kind of beam.
The reverse is different. If he has permission to use thick beams, then achazik lehurdei: certainly he has permission to use thin beams too, a kal vachomer (of course you can). Rav Yosef says that once he has permission to use thin beams, he also has permission to use thick beams. In his view, he acquired rights to use the wall for beams, not just for one type. Sheken yesh lehani'ach shehu kana miba'al hakotel zechut lehani'ach sham kol sug sheyirtzeh (One may assume he bought from the wall's owner the right to place any kind he wishes there). Just because he first placed thin beams does not necessarily mean he lacks the right to place thick ones.
Ika de'amrei (Some say): Rav Nachman says that permission for thin beams gives permission for thick beams, as Rav Yosef says; and permission for thick beams certainly gives permission for thin ones.
Rav Nachman says, achazik lenatfei—he established a right for dripping water. Suppose a neighbor's roof has gutters and the water drips into the other person's courtyard. The person needs permission for the water to drip there. If there is a right for natfei, then there is also a right for shafchei—water pouring or flowing. Dripping can run along the whole side of the courtyard, while pouring water may land in one area. If I let you use the whole area for dripping, surely I will let you use one area for water falling there.
But achazik leshafchei, lo achazik lenatfei (He established a right for water to pour, but he did not establish a right for dripping). Just because I let you pour water in one area does not mean I let the whole courtyard get wet with dripping. Rav Yosef says, afilu achazik leshafchei (Even if he established a right for pouring water), he has a right for dripping too. The basic distinction is that shafchei is water landing in one place, while natfei is dripping along the length of the area.
Ika de'amrei: Rav Nachman says, achazik leshafchei, achazik lenatfei; and if he has a right for dripping, he has a right for pouring. That is like the second opinion, like Rav Yosef. But aval letzifei de'urbanei lo (but not for a roof of willow branches). If the roof is a flimsy roof made of willow branches, the water runs off heavily. Umikeivan shehatipot begag kazeh smuchot me'od lazeh lazeh, umilvad zot eino yachol lehishtamesh bechol eizor hametaftef (Since the drops on such a roof are very close together, and he cannot use the whole area beneath the dripping). Even if I let you use runoff from an ordinary roof, I do not necessarily let you use the courtyard for runoff from this kind of roof, because there is so much water that I cannot use the courtyard.
Rav Yosef says, afilu letzrifa de'urbanei (even for a hut of willow branches). Va'avad Rav Yosef uvda betzrifa de'urbanei (Rav Yosef acted in practice in a willow-branch hut case): he actually did a halachah lema'aseh (practical halachah), allowing someone to use runoff even from the hut. Perhaps the willow branches absorb more than an ordinary roof, so more water comes down; perhaps it runs off more slowly.
Rav Nachman said in the name of Rabbah bar Avuha, hamaskir bayit lechavero bebira gedolah (One who rents a house to another in a large building). Basically, he rents an apartment in an apartment building. Mishtamesh bezizeha uvchotleha ad arba amot (He may use its projections and walls up to four cubits). What usage comes with the apartment? He may use storage areas outside the apartment: zizeha, bricks that protrude out, and kotleha, the holes in the wall, up to four amot. That is considered part of renting the inside of the apartment, even though the storage is outside the apartment, on the outside of the building.
Uve'ovi hakotel bimkom shenahagu (And in the thickness of the wall, where that is customary). If the custom is to use the thickness of the wall, he may do so—for example, a second-floor tenant may use the space above the wall. But aval beturbatz apadna lo (But not in the palace garden): you cannot put your things in the open garden area, which is a common area and is kept clear. VeRav Nachman didei amar afilu beturbatz apadna (Rav Nachman himself said even in the palace garden). He allows it even beside the garden. But aval berechavah (the backyard) she'achorei batim (behind the houses), that does not belong to the renter. Rava says, VeRava amar afilu berechavah she'achorei batim (And Rava said even in the area behind the houses).
These are halachic questions that could come up when you rent a house: what does it come with, and what rights do I have? Today, everything is written in the contract. This is when the terms are stam (unspecified), when nothing was written down. If it was written down, you can use whatever the agreement allows.
I had a case where a tenant left things outside his apartment door—a baby carriage, dog food, and so on—and it ended up in Supreme Court. They claimed they had rights to the area within three feet outside the door. We won because we said it was a fire hazard, but besides that, I don't know if we would have won. Tenants in Brooklyn use the hallway all the time for groceries, luggage, garbage, and smelly shoes. They have a small apartment, so they put things outside. But that is a common area. That's why they appointed that clown Thomas to the Supreme Court, he's that pained about the dog food. Yeah. Overqualified. In New York, Supreme Court is the lowest court.
Ravina says, hai kishura demetallalta—this beam of a shade structure. The case is a sukkah—a regular hut, a shade hut, not a festival booth—built using a neighbor's wall. The person leans his hut against the wall. If the neighbor says nothing, the person may eventually claim, “It's my wall,” because he has been using it as a wall for his hut.
The Gemara says, ad telatin yomin lo havei chazakah (For thirty days it is not an established presumption). For the first thirty days, the fact that the neighbor did not say anything is not enough. He may be thinking that thirty days is not a long time. Aval batar telatin yomin (But after thirty days), havei chazakah (it is an established presumption). After thirty days, if the neighbor still says nothing, the user has a chazakah.
“This is not a karka; the chazakah you are talking about is on a field, on a karka.” Here the issue is usage. If I use your wall and you do not say anything, I may eventually claim that I paid for the right to use it. The text says, im samchah al kotel chavero velo michah betoch sheloshim yom lo havei chazakah lit'on velomar piyasticha vema'ot (If he leaned against his fellow's wall and he did not protest within thirty days, it is not a presumption for claiming, I appeased you with money). In other words, silence for thirty days does not establish that he paid for the wall. The claim is not “I own the wall”; it is “I paid for the right to use it.”
Mah ta'ama (What is the reason?) Dechol telatin yomin lo kapid inish (For during thirty days a person does not mind), velo ati velo machi (he does not come and protest), because he thinks, savor chaveri zeh tzarich letzel (he thinks, my fellow needs shade). For thirty days, he may let him use it without being bothered. But after thirty days, the user may claim, “I paid you,” and that he has a legal right to use it forever. The owner’s silence does not mean that he gave it away for free.
That is why commercial leases have a clause saying that if the landlord does not enforce a rule, it does not mean that he has mochel—waived his rights. In actuality, it's not. Otherwise, after thirty days, the tenant might say, “I bought the right; it's mine.” The owner may be away, may not notice, or may simply want to be nice without giving up his rights.
But if it is a sukkah for a mitzvah, Ei sukkah demitzvah hi (If it is a mitzvah sukkah), ad shiv'ah yomin (for seven days)—that is how long he needs it. The neighbor knows he is building a sukkah and lets him use the wall for seven days. If he does not protest during that period, there is no proof that the user has a chazakah; the owner is just letting him use it for the sukkah. Lo havei chazakah (it is not an established presumption). Batar shiv'ah yomin havei chazakah (After seven days it is an established presumption). What if he built the sukkah before the holiday, as restaurants do? If he built it on erev Chag HaSukkot, the seven days run through the holiday. If he is chutz la'Aretz (outside the Land of Israel), they have until Shemini Atzeret. A restaurant in Brooklyn built a sukkah out front, and the Buildings Department told them to take it down within seven days. They said, “Okay.”
Ve'i chavreih betina (And if he joined it with mortar): if the person put cement and beams on the other person's wall, le'alter havei chazakah (immediately it becomes an established presumption). If the owner does not protest right away, there is a chazakah, because this is more than doing someone a favor. The user is believed if he claims that he paid for the right, or that it was included in the original rental agreement. It does not mean that the owner waived his rights merely by saying nothing. Ha deha. The user must claim that he paid or otherwise had the right, and the presumption supports that claim. He does not own the wall; he has a right to use it. If the wall falls, they have to rebuild it if he has rights. The renter might say, “I paid for a wall, and you didn't give me one,” and deduct the cost from the rent.
Abaye brings another case. You will see the word ma'akeh (fence); this is not the normal ma'akeh, so don't get nervous. Picture two houses across the street from each other, with the reshut harabim (public domain) in the middle. Their roofs can see each other, creating hezek re'iyah, a privacy problem. They both have to make adjustments to their roofs, but neither has to build a full wall. Each can build 51% from his side, so the two walls overlap and block the view. Each person builds a parapet across 51% of the roof from his side; the overlap prevents them from seeing into each other's property.
Shene batim (Two houses), bishene tzide reshut harabim (on the two sides of the public domain): zeh oseh ma'akeh lachatzi gago (one builds a parapet for half his roof), vezeh oseh ma'akeh lachatzi gago (and the other builds a parapet for half his roof). Zeh shelo keneged zeh—not parallel to each other—and uma'adif—he extends it a little more. As we said, each builds a little more than half, so the walls overlap. This is about privacy on the roofs.
The Gemara asks, Mai irya bireshut harabim (Why specifically in the public domain?) Afilu bireshut hayachid nami (Even in a private domain as well). Why mention the public domain? The answer is that it is tzricha (necessary). You might have thought that the neighbor could say, “In any event, you have to protect yourself from the public domain. You would have built the wall anyway.” The point is, mahu detema nima leh sof sof ha ba'at le'istatore mibe reshut harabim (You might have said: he can tell him, in any event, you must protect yourself from the public domain). The Gemara teaches us, ka mashma lan—the point is—damar leh (he can say to him), rabim beyamama chazu li (the public see me by day), belilya lo chazu li (at night they do not see me), but at ben beyamama ben belilya chazit li (you see me both by day and by night). So the other neighbor cannot say, “You would have built it anyway to protect yourself from the public.” If it were a private domain, each could tell the other that he would have had to build a full wall anyway for privacy. But here the public only sees him during the day, while his neighbor can see him at night too.
I nami—another explanation: rabim ki kaymi chazu li (the public see me when I stand), ki yativna lo chazu li (when I sit, they do not see me). But the neighbor sees him whether he stands or sits: at chazit li ben ki ka'imna ben ki yativna. Another explanation: rabim ki me'aynu chazu li (the public see me when they look), meaning they have to look up and look at me bekavanah (intentionally). Ki lo me'aynu lo chazu li (When they do not look, they do not see me). But at memela nami chazit li (you see me in any event). The Gemara is teaching that even in this case, the neighbor can be made to build a wall. You might have thought that because a dedusha is reshut harabim, you cannot force the neighbor to build one. His privacy problem is greater. The word in the discussion is dedusha (unclear term).
Osin mechitzah le'emtza (They build a partition in the middle). Since they build the walls offset and extend them, the Gemara asks, peshita (obvious): why is that a novel ruling? It is lo, tzericha (No, it is necessary), for the case dekadim chad minayhu ve'avad (that one of them acted first and built). One person built his half first because he wanted to stop the neighbor from looking in. You might have said that the other person can tell him, mahu deteima neima leih idach (You might have said the other can tell him), shekol zuzei ve'avdeih at kuleih (take the money and build all of it): “Finish the whole wall; I'll reimburse you.” It might be easier for the person who already started, because the workers and scaffolding are already there, while building half a wall is a tircha (effort).
The Gemara teaches that the other person can refuse. De'amar leih (For he can say to him), at mai ta'ama lo avadt (Why did you not build it?): “Why didn't you build the whole wall yourself?” Mishum demitzra'a shitach (Because you feared your wall would be damaged). Ana nami mitzra'a deshita (I too fear my wall will be damaged). Do not come along and be a tzaddik (righteous person) and tell me to finish the wall because you would have built it otherwise. You did not build it because you did not want your wall damaged, and for the same reason I do not have to build the whole thing. Even though you started first, I can say that you have an obligation to build the other half on your side.
Rav Nachman said in the name of Shemuel, gag hasamuch lachatzer chaveiro (a roof adjoining his fellow's courtyard): the roof owner can see into the neighbor's courtyard. Oseh lo ma'akeh gavoha arba amot (he makes a parapet four cubits high). But aval bein gag legag lo (not between one roof and another). Why? Sheshishtamshut begag einah kevu'ah (Use of a roof is not regular). You do not always use your roof, so you can be careful and go up when the neighbor is not there. Kedei shelo ya'asu devarim shel tzin'ah (I'm not gonna do private things over there). You can figure out when to use the roof.
But aval bein gagot she'einam semuchim zeh lazeh (between roofs that are not adjacent), as in the case of the public domain between them, yesh chiyuv livnot ma'akeh (there is an obligation to build a parapet). As we learned, mishum shehamerchak beineihem gorem lechoser simat lev (because the distance between them causes inattention). You do not pay attention to a person across the street the way you do to someone right above you. If someone is right above you, you know when he is there and can avoid using the roof. Across the street, you may forget about him. That is the distinction.
Aval begag legag lo. Rav Nachman himself says, eino zakuk le'arba amot (he does not need four cubits), aval zakuk limechitzat asarah (but he needs a partition of ten). So the first view says that between two roofs you need nothing, while Rav Nachman says you need at least ten tefachim (handbreadths). For what purpose? Lehezek re'iyah—for privacy, we require four cubits. If the concern is that he might trespass, i delo leitpas aleih keganav (if it is so he will not be caught as a thief), bimesipas be'alma sagi (a simple barrier is sufficient). You could put up a low border so that if he crosses it, you can call him a ganav (thief).
If the concern is goats and lambs, i ligdayim utlayim, then bichdei shelo yizdaker bebat achat sagi (it suffices that it cannot jump over in one leap): three tefachim. But the Gemara concludes, le'olam delo leitpas aleih keganav (Actually, it is so he will not be caught as a thief). The concern is trespassing. Why is a low barrier not enough? Uvemesipas matzi mishtamet leih (With a low barrier, he can evade the claim), while bimechitzat asarah lo matzi mishtamet leih (with a ten-handbreadth partition, he cannot evade the claim). With a low border he can say, “It was a mistake; I walked over without noticing.” To cross a ten-handbreadth partition, he has to climb over it.
Metivei—an objection is raised: hayah chatzero lemalah migago shel chavero (if his courtyard was higher than his fellow's roof), ein nizkakin lo (they do not attend to his claim). The owner of the courtyard does not have to help the roof owner. Does that mean the courtyard owner does not have to do anything, even build a ten-handbreadth partition? The discussion is about Rav Nachman's view. He said that between roofs there is a ten-handbreadth partition, but this case is a courtyard above a roof.
There was a long discussion about how to understand the objection and whether Rav Nachman's ruling applies to both cases. The distinction is that Rav Nachman first quoted Shemuel about a roof beside a courtyard, where the roof owner builds a four-cubit parapet for hezek re'iyah. Rav Nachman then gave his own view about roofs, saying that a ten-handbreadth partition is needed. The Gemara's question is that the courtyard-above-the-roof case seems to require nothing. The answer is not that the case proves there is no obligation at all; rather, the Gemara explains what the obligation is and which party must bear it. Rashi's version has ein zakuk lo in the singular; our version has ein nizkakin in the plural, meaning Beit Din does not attend to the roof owner's claim.
Rav Benny's explanation is: Af sheba'al hagag mechuyav bimchitzat arba amot (Although the roof owner is obligated to build a four-cubit partition) because of hezek re'iyah, Uto'elet zo to'il lo gam le'inyan detafsah alav (this benefit also helps him regarding trespass). Nevertheless, since the courtyard owner is also obligated to build a ten-handbreadth partition, Umikkol makom, kevan sheba'al hachatzer af hu mechuyav bimchitzat asarah tefachim (Nevertheless, since the courtyard owner is also obligated in a ten-handbreadth partition), Alav lehishtatef bimchitzah beshi'ur zeh, velachen ba'al hachatzer meshalem shi'ur chamesh tefachim (he must share in the partition to that measure, so the courtyard owner pays five handbreadths). The roof owner must build four amot for privacy. The courtyard owner must pay half the ten tefachim needed to prevent trespassing, because he would have needed a partition for that purpose too.
There was another question about whether the beraita is saying that the courtyard owner need not contribute anything. The conclusion is that the beraita does not prove that he needs no partition; it may mean that he does not need four amot for privacy, but he still needs ten tefachim to prevent trespassing. Rav Nachman's own ruling is understood as requiring ten tefachim in both cases, while the four-cubit requirement is a separate issue of hezek re'iyah.
The explanation of the case is that use of the roof is not constant, while use of the courtyard is constant. The person using the courtyard cannot always be on guard; he does not know when the roof owner will come out. So the roof owner must build a partition to prevent visual damage. The courtyard owner, however, does not have to help the roof owner with the four-cubit privacy wall, because the roof owner can be careful about when he uses his roof. The courtyard owner may still have to contribute toward the ten-handbreadth partition for trespassing.
Now another case: Itmar (it was stated), shtei chatzerot zo lema'lah mizo (two courtyards, one above the other). Rav Huna says, tachton boneh miknegdo ve'oleh, ve'elyon boneh miknegdo ve'oleh (the lower one builds opposite him and upward, and the upper one builds opposite him and upward). The lower person builds up to the level of his neighbor's ground, ad govah karka'ito shel shecheno (up to the height of his neighbor's ground). Then the upper person starts from where the lower person's wall ends and builds upward. The upper person does not have to help with the lower wall.
Rav Chisda says, Elyon mesaye'a milematah uvoneh (the upper one assists from below and builds). What does that mean? The upper person does not share the construction costs of the wall up to the level of his courtyard, but at his own level he does share: A val bimkom hu meshutaf (But he shares at his own level). They remove earth from the upper courtyard down to the lower ground to build the wall between them, down to the ground of both courtyards: shemak'tzi'im me'afar hachatzer ha'elyonah ad hakarka hatachtonah livnot et hakotel ba'emtza, ad karka shel sheneihem.
What is the case? You have a lower courtyard and an upper courtyard, and you want to build a wall between them. Does the upper person help pay for the lower part, since his wall rests on it? Rav Chisda says yes, he shares in the foundation. The other view says the lower person has to build his wall anyway to block the view. Why not tell the upper person to build his privacy wall entirely on his own property? It would fall without a foundation. If the upper person needs the lower person's wall to build his own, then perhaps he has to pay for it.
The question is whether he pays for four amot or for the whole wall. Rabbeinu Yonah explains that the lower person has use of the lower part of the wall, so he is not simply paying for something that benefits only the upper person. Tanya kavateih de-Rav Chisda (A teaching supports Rav Chisda). The Avunei Nezer, however, exempts the upper courtyard from contributing because the lower courtyard can use the lower portion, while the upper person cannot use it.
The teaching says, shtei chatzerot zo lema'lah mizo, lo yomar ha-elyon hareini boneh mikedei ve'oleh, ela yesayei mi-lematah uvoneh (Two courtyards, one above the other: the upper one may not say he will build from his level upward; rather, he must help from below and build). And ve'im hayetah chatzero lema'lah migago shel chavero, eino zakuk lo (if his courtyard is above his fellow's roof, he need not assist him). That is the same case we learned earlier: the roof owner is responsible for the privacy wall, not the courtyard owner, because the roof owner has to prevent hezek re'iyah into the courtyard.
Let's review the Zikron for today. The topic was establishing rights of usage in a neighbor's property, including resting beams and dripping water. The Gemara discusses cases where someone has an established right to use his neighbor's property. Rashi explains that such rights are established immediately when a person uses the neighbor's property in his presence and the neighbor does not protest, supporting the claim that the person bought or otherwise received the right.
Rav Nachman said, achazukei le-hordei—establishing a right to place thin beams. That does not automatically mean that he can place thick beams, since the neighbor might not have allowed something so large. Rav Yosef says that a right to place beams applies to all kinds of beams. We also discussed natfei, the right to let rainwater drip. A right for rainwater dripping does not necessarily mean that the person has permission for a gutter that pours water into one place. Some say that if he was given permission for one type of water use, that includes the other; others distinguish between them. We also discussed the willow-branch hut and its runoff.
Then we learned hai kishura de-metallalta, the shade structure. If the owner did not protest for thirty days, that alone is not proof; after thirty days, there is a presumption. For a mitzvah sukkah, the relevant period is seven days. The last case was rooftops facing each other across the public domain, where the neighbors build offset parapets to prevent hezek re'iyah.
Now, what is sayaf? A sword. The mnemonic describes a sword collector. He placed thin swords against his neighbor's wall, and because the neighbor did not object when he placed large swords there, he had a chazakah to do so. He also left swords on the neighbor's wall for shade for thirty days, giving him a chazakah to keep them there. Then he was making a fence of swords across half his roof, while his neighbor did the same. The picture shows the thin and thick swords leaning against the wall, swords providing shade, and swords on the roof. The three cases are thin and thick swords, swords used for shade, and swords forming a parapet. Gag vechatzer vechatzer vegag (roof and courtyard, courtyard and roof). The odd cases? The odd cases are what you're crazy about if you do.