Babylonian Talmud: Tractate Baba Bathra

Folio 7a

'Then let me take it down and rebuild it,' said the first. He replied: 'Meanwhile I have nowhere to live.' Said the first: 'I will hire you a place.' 'I do not want the bother,' he replied. ['But,' said the first,] 'I cannot live in my place.' [To which he replied,] 'You can crawl on your belly¹  to get in, and crawl on your belly to get out. Said R. Hama: He had a full right to stop him [rebuilding]. This, however, is the case only if the beams [of the upper room] did not sink lower than ten handbreadths [from the ground], but if they came as low as this, the owner of the lower room can Say: Below ten handbreadths is my property and is not subject to you.²  Further, [the one above was within his rights] only if they had not made an agreement with one another,³  but if they had made an agreement with one another, then they must take down the house and rebuild it. And if they did make an agreement with one another, how low [must the upper chamber sink before the one below can demand rebuilding]? — The Rabbis stated in the presence of Rabbah in the name of Mar Zutra the son of R. Nahman, who said it in the name of R. Nahman: Till [the lower room fails to answer the requirement laid down for] that of which we have learnt,⁴  Its height must be equal to half its length and half its breadth [combined]. Said Rabbah to them: Have I not told you not to hang empty bottles⁵  on R. Nahman? What R. Nahman said was, 'It must be fit for human habitation'. And how much is this? — R. Huna the son of R. Joshua said: Big enough for one to bring in a bundle [of reeds] of Mahuza⁶  and turn round with them.

A certain man began to build a wall facing his neighbour's windows. The latter said to him, 'You are shutting out my light.' Said the first, 'Let me close up your windows here and I will make you others above the level of my wall.' He replied, 'You will damage my wall by so doing.' 'Let me then,' he said, 'take down your wall as far as the place of the windows and then rebuild it, fixing windows in the part above my wall.' He replied, 'A wall of which the lower part is old and the upper part new will not be firm.'⁷  'Then,' he said, 'let me take it all down and build it up from the ground and put windows in it.' He replied, 'A single new wall in a house, the rest of which is old, would not be firm.' He then said, 'Let me take down the whole house and put windows in the new building.' He replied, 'Meanwhile I have no place wherein to live.' 'I will rent a place for you,' said the other. 'I don't want to bother,' said the first. Said R. Hama [on hearing of the case]: He had a perfect right to stop him. Is not this case the same as the other? Why, then, this repetition? — To tell us [that the owner of the house may exercise his veto] even though he only Uses it for storing straw and wood.⁸

Two brothers divided [a house which they inherited], the one taking as part of his share a verandah open at one end⁹  and the other the front garden. The one who obtained the garden went and built a wall in front of the opening of the verandah. Said the other, 'You are taking away my light.' 'I am building on my own ground,' he replied. Said R. Hama: He was quite within his rights in saying so. Rabina asked R. Ashi: How does this case differ from what was taught: 'If two brothers divide an inheritance, one taking a vineyard and the other a cornfield [adjacent], the owner of the vineyard can claim four cubits in the cornfield,¹⁰  since it was understood that on that condition they divided'? — He replied: There [the reason is] that they struck a balance with one another.¹¹  What then [said Rabin] do we suppose here? That they did not compensate one another? Are we dealing with idiots, of whom one takes a verandah and the other a garden, and yet no question of compensation is raised? He replied: Granted that compensation was allowed for the bricks, beams, and planks, no allowance was made for the air space.¹²  But cannot he say, 'At first you let me have a verandah as my share, now you are only letting me have a dark room'? — R. Shimi b. Ashi said: He let him have something which happened to be called so. Has it not been taught: 'If a man says, I sell you a beth kor of ground,¹³  even if it subsequently prove to be only a lethek¹⁴  the sale is valid, since he sold him only something designated a beth kor, provided always that the land in question is commonly called a beth kor. [If a man says], I sell you an orchard, even though there are no pomegranates in it, the sale is valid, since he only sold him something designated so, provided the place is commonly called an orchard. [If a man says], I sell you a vineyard, even if there are no vines in it the sale is valid, since he only sold him something designated so, provided always that the place is commonly called a vineyard'?¹⁵  — Are the cases parallel? There the vendor can say to the purchaser, I sold you [something called by] a certain name; here the one who obtains the verandah can say, I only took this as my share on condition that I should be able to live in it as our father lived.¹⁶

1. According to another rendering, 'You can bend yourself double'.
2. And therefore I can demand to have the house pulled down and rebuilt.
3. To rebuild the house if it sank.
4. If one undertakes to build a (one-roomed) house without specifying the size. Infra 98b.
5. I.e., not to attribute absurd opinions to him.
6. Which were exceptionally long.
7. Because the new cement does not stick well to the old.
8. And therefore he cannot say that he will have nowhere to live if it is pulled down.
9. [H] [G] a cave, a recess; hence, a sitting room in the shape of a hall; v. Tosaf. s.v. [H]
10. To allow room for his oxen to turn when working the vineyard.
11. The one who received the more valuable portion giving compensation to the other.
12. By the owner of the verandah, so that he should have the right of keeping it empty.
13. I.e., a piece of ground large enough for the sowing of a kor of seed. A kor = 30 se'ah, and a beth kor (lit.. 'house of a kor') = 75,000 sq. cubits.
14. Half a kor.
15. B.M. 104a.
16. And therefore it must not be interfered with, even at the cost of restricting the other's building rights.

Mar Yanuka and Mar Kashisha the sons of R. Hisda said to R. Ashi: The Nehardeans¹  in this are applying their own principle; for R. Nahman said in the name of Samuel:²  If brothers divide [property which they have inherited], neither has the right of way against the other,³  nor the right of 'windows'⁴  against the other, nor the right of 'ladders'⁵  against the other, nor the right of a watercourse⁶  against the other; and take good heed of these rulings, because they are firmly established. Raba, however, said that each has these rights against the other.

There was a bond [inherited] by orphans [from their father] against which a receipt was produced [by the borrower]. R. Hama said: We neither enforce payment on the strength of the bond, nor do we tear it up. 'We neither enforce payment', because a receipt is produced against it, 'nor do we tear it up', because it is possible that when the orphans grow up they will bring evidence invalidating the receipt. Said R. Aha the son of Raba to Rabina: What is the accepted ruling in such a case? — He replied: In all [the above-mentioned cases] the law follows R. Hama, save only in the matter of the receipt, the reason being that we do not presume the witnesses [who have signed the receipt] to have been guilty of a falsehood. Mar Zutra the son of R. Mari, however, said that in this also the law follows R. Hama, since if the receipt were genuine the defendant ought to have produced it in the lifetime of the father, and since he did not do so, the inference is that it was forged.

MISHNAH. HE [A RESIDENT OF A COURTYARD] MAY BE COMPELLED [BY THE REST] TO [CONTRIBUTE TO] THE BUILDING OF A PORTER'S LODGE⁷  AND A DOOR⁸  FOR THE COURTYARD. RABBAN SIMEON B. GAMALIEL, HOWEVER, SAYS THAT NOT ALL COURTYARDS REQUIRE A PORTER'S LODGE.⁹  HE [A RESIDENT OF A CITY] MAY BE COMPELLED TO CONTRIBUTE TO THE BUILDING OF A WALL, FOLDING DOORS AND A CROSS BAR. RABBAN SIMEON B. GAMALIEL SAYS THAT NOT ALL TOWNS REQUIRE A WALL. HOW LONG MUST A MAN RESIDE IN A TOWN TO BE COUNTED AS ONE OF THE TOWNSMEN?¹⁰  TWELVE MONTHS. IF, HOWEVER, HE BUYS A HOUSE THERE, HE IS AT ONCE RECKONED AS ONE OF THE TOWNSMEN.

GEMARA. [TO THE BUILDING OF A PORTER'S LODGE.] This would seem to show that a porter's lodge is an improvement: yet how can this be, seeing that there was a certain pious man¹¹  with whom Elijah used to converse until he made a porter's lodge, after which he did not converse with him any more?¹²  — There is no contradiction; in the one case we suppose the lodge to be inside [the courtyard], in the other outside.¹³  Or if you like I can say that in both cases we suppose the lodge to be outside, and still there is no difficulty, because in the one case there is a door and in the other there is no door.¹⁴  Or again we may suppose that in both cases there is a door, and still there is no difficulty, because in the one case there is a latch¹⁵  and the other there is no latch. Or again I may say that in both cases there is a latch and still there is no difficulty, because in the one case the latch is inside and in the other outside.¹⁶  HE MAY BE COMPELLED TO CONTRIBUTE TO THE COST OF A PORTER'S LODGE AND A DOOR. It has been taught: Rabban Simeon b. Gamaliel Says: Not all courtyards require a porter's lodge; a courtyard which abuts on the public thoroughfare requires a lodge, but one which does not abut on the public thoroughfare¹⁷  does not require such a lodge. The Rabbis, however, hold that [it does, because] sometimes in a crowd people force their way in.

HE MAY BE COMPELLED TO CONTRIBUTE TO THE BUILDING OF A WALL etc. It was taught:¹⁸  Rabban Simeon b. Gamaliel says that not all cities require a wall; a town adjoining the frontier requires a wall, but a town which does not adjoin the frontier does not require a wall. And the Rabbis?¹⁹  — [They hold that it does, because] it may happen to be attacked by a roving band.

R. Eleazar inquired of R. Johanan: Is the impost [for the wall] levied as a poll tax or according to means? He replied: It is levied according to means; and do you, Eleazar my son, fix this ruling firmly in your mind.²⁰  According to another version, R. Eleazar asked R. Johanan whether the impost was levied in proportion to the proximity of the resident's house to the wall or to his means. He replied: In proportion to the proximity of his house to the wall:²¹  and do you, Eleazar my son, fix this ruling firmly in your mind.

R. Judah the Prince²²  levied the impost for the wall on the Rabbis. Said Resh Lakish: The Rabbis do not require the protection [of a wall], as it is written, If I should count them, they are more In number than the sand.²³  Who are these that are counted? Shall I say the righteous,²⁴  and that they are more in number than the sand? Seeing that of the whole of Israel it is written that they shall be like the sand on the sea shore,²⁵  how can the righteous alone be more than the sand? — What the verse means, however, is I shall count the deeds of the righteous and they will be more in number than the sand. If then the sand which is the lesser quantity protects [the land] against the sea, how much more must the deeds of the righteous, which are a larger quantity, protect them? When Resh Lakish came before R. Johanan, the latter said to him: Why did you not derive the lesson from this verse, I am a wall and my breasts are like towers,²⁶  where 'I am a wall' refers to the Torah, and 'my breasts are like towers'

1. R. Hama was from Nehardea, v. Sanh. 17b.
2. Who was also from Nehardea.
3. I.e., across the other's field to his own field.
4. The right to stop the other from taking away his light.
5. The right to rest a ladder in the other's courtyard in order to climb to his own room, or even to place the ladder in his own courtyard and let it rest against the other's room (v. Tosaf.).
6. The right to carry water from the river to his own field through the other's; all this notwithstanding the fact that the father was accustomed to do these things.
7. Lit., 'a gate house'.
8. In the main gate.
9. The Gemara discusses which are meant.
10. And become liable to these imposts.
11. [Wherever an incident is related of a 'pious man', either Judah b. Baba or Judah b. Ila'i is meant. (Tem. 16b).]
12. Because the lodge prevented the cries of poor men from being heard within the courtyard.
13. If the lodge is outside, the poor man can get behind it and it does not prevent his voice from being heard.
14. If there is a door to the lodge, the poor man cannot go through it, and it prevents him from being heard.
15. By means of which the poor man can open it and enter.
16. If the latch is inside the poor man cannot open the door with it, and so cannot make his voice heard.
17. Being somewhat drawn back into private ground.
18. (V. Rashal a.l. and D.S.)
19. The representatives of the anonymous opinion cited in the Mishnah. Why do they make no such distinction?
20. Lit., 'Fix nails in it'.
21. According to Tosaf., this means that the poor man at a distance from the wall paid less than the poor man near the wall, and so with the rich, but the rich man at a distance from the wall still paid more than the poor man near.
22. [Judah III, v. Halevy, Doroth, II, 336.]
23. Ps. CXXXIX, 18.
24. Referred to in the word [H] in the previous verse, which Resh Lakish translates 'friends' (E.V. 'thoughts').
25. Gen. XXII, 17.
26. Cant. VIII, 10.