THOUGHTS ON THE DAILY DAF
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Rosh Kollel: Rav Mordecai Kornfeld
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Bava Basra, 3
BAVA BASRA 3-5 - sponsored by Harav Ari Bergmann of Lawrence, N.Y., out of
love for Torah and those who study it.
1) A CLAIM OF "HEZEK RE'IYAH"
OPINIONS: The Rishonim rule in accordance with the second version ("Lishna
Achrina") of the Gemara that Hezek Re'iyah is considered Hezek. Therefore,
when partners divide their property, one can force the other to build a wall
between their portions.
2) BUILDING A THIN WALL
What is the Halachah in a case where partners divide the property but do not
build a wall, and then a few years later one of the partners insists that
the other one should share in the expense of building a wall to prevent
Hezek Re'iyah? We know that a person can procure a Chazakah for using his
property in a manner which disturbs his neighbor (6a; see Hagahah in Rashi,
DH Achzik l'Hurdi). Will such a Chazakah work with regard to Hezek Re'iyah
The Rishonim write that a Chazakah will not help to counteract a claim of
Hezek Re'iyah, and they offer a number of reasons.
(a) The ROSH (1:2) and the RA'AVAD (cited by the Rashba) write that a
Chazakah will not be effective, because each of the neighbors is damaging
the other in an equal manner. Therefore, each may say that the reason he did
not protest the Hezek Re'iyah earlier is because "I did not want to provoke
my neighbor to protest the Hezek Re'iyah that I was causing, so instead I
waited for him to register his protest of Hezek Re'iyah until I registered
my protest." According to this, if only one of the two neighbors is causing
Hezek Re'iyah, such as where one's roof is adjacent to his neighbor's
courtyard, where the owner of the courtyard suffers Hezek Re'iyah, then the
perpetrator of the Hezek Re'iyah is able to have a Chazakah if the victim
does not protest.
(b) The RIF (in a Teshuvah cited by the Rashba) and the RAMBAN write that
there is no Chazakah for Hezek Re'iyah, since it is a constantly occurring
damage and it is not possible for one neighbor not to see what the other is
doing. Therefore, it is comparable to causing smoke to go into his
neighbor's property, a form of Hezek for which a person can never have a
(c) The RI MIGASH writes that a Chazakah can be obtained only through an
action, such as building a window into one's wall opposite his neighbor's
property. Hezek Re'iyah does not involve an action which changes the status
quo, since they both continue to use the Chatzer as it is, and therefore it
cannot be considered a Chazakah.
The Teshuvas ha'Rif cites proof to the ruling that Chazakah does not work in
the case of Hezek Re'iyah from the first version ("Lishna Kama") of the
Gemara. The Gemara (2b) asserts that if the word "Mechitzah" in the Mishnah
means a wall, then we can prove from the law that the neighbors must agree
to build a wall (and cannot force each other to build it) that Hezek Re'iyah
is not a Hezek, because otherwise they could force each other to build a
wall. If a Chazakah can be made to counteract a claim of Hezek Re'iyah, then
the Mishnah might be referring to a situation in which both partners do not
protest the other's Hezek Re'iyah, and therefore they each have a Chazakah.
Since they each have a Chazakah, that is why they do not have to build a
wall unless both consent to do so. It must be that it is impossible to
obtain a Chazakah for Hezek Re'iyah, and one neighbor can always force the
other to help build a wall because of Hezek Re'iyah (according to the view
that Hezek Re'iyah is considered Hezek).
The Rishonim do not seem to view this as an irrefutable proof. They do not
explain, though, how the proof can be refuted.
REBBI AKIVA EIGER (2a) explains that the refutation might be from the second
part of the Mishnah, where the Mishnah says, "v'Chen b'Ginah," meaning
that -- in a Ginah -- even if the partners do not agree to build a wall,
they can force each other to do so because of "Ayin ha'Ra" (as the Gemara
explains on 2b). If the Reisha of the Mishnah is discussing neighbors who
each had a Chazakah to do Hezek Re'iyah and that is why they cannot force
each other to build a wall, then why does the Mishnah differentiate between
the wall of a Chatzer and the wall of a Ginah? It is clear that a person can
obtain a Chazakah for Hezek Re'iyah in a Ginah as well! This might be why
the Gemara assumes that the Reisha of the Mishnah is not discussing a
situation in which a Chazakah was obtained, but rather it is discussing
neighbors who are now dividing the Chatzer and have not made any Chazakah.
OPINIONS: The Rishonim rule that Hezek Re'iyah is considered Hezek.
Consequently, neighbors can force each other to build a six-Tefach-thick
wall between their two portions of land when that is the customary practice
of that place ("Minhag ha'Medinah").
The Gemara discusses a case in which the partners build the wall equally on
both of their portions of land. What is the Halachah in a case where one of
the partners offers to build the entire wall in his portion, but to make it
much thinner than the customary practice of that place in order to save the
land and expenses of building a thick wall?
(a) The ROSH (1:5) writes that it is permitted to build a thin wall (even a
wooden fence) in one's own lot, thereby avoiding the expenses of a thick
wall. He explains that the logic of why each of the neighbors may force the
other to build a thick wall in accordance with the customary practice in
that place is because he could say that he does not agree to give up space
in his lot unless he feels that the wall be a strong and enduring one. If
the wall is not being built in his yard, then he cannot protest the fact
that the wall that his neighbor builds is not strong and enduring.
The Rosh proves this from the Gemara earlier (2b) that says that when a
person has a roof adjacent to his neighbor's Chatzer, the owner of the roof
must make a "*Ma'akeh*" four-Amos high. Why does the Gemara call this
partition a "Ma'akeh" and not a "Kosel?" It must be that since only one
person is building this partition (since the owner of the Chatzer is not
damaging the owner of the roof with Hezek Re'iyah), he is not required to
build it in accordance with the required thickness of the wall as described
by our Mishnah.
The Rosh cites a second proof from the Beraisa which teaches that the owner
of a wheat field can force his neighbor, the owner of a vineyard, to build a
wall between the two fields. We do not find, though, that such a wall must
be built according to the measurements described in our Mishnah. (This proof
might be refuted by suggesting that there never was a Minhag ha'Medinah to
build such thick walls in a vineyard.)
(b) The RASHBA writes that even if one neighbor builds the entire wall in
his lot, he still must build it in accordance with the customary practice
(i.e. six Tefachim thick). If that would not be the Halachah, but rather a
person could choose to build a thin wall in his own property, then who would
ever agree with his neighbor to build half (three Tefachim) of a thick wall
on his lot when he could avoid the expense by opting to build a very thin
wall on his property?
(The Rosh alludes to the answer to this question. A person might not want to
build a thin wooden fence on his property, because ultimately he will not
save money, since it will collapse more easily and he will have to bear
constant expenses to rebuild it.)
The Rashba defends his ruling with logic, by saying that if one neighbor
wants to build a thin wall, the other neighbor can insist that a thin wall
is not sufficient because it will easily collapse and he will constantly
have to bring his neighbor to court to force him to rebuild it.
REBBI AKIVA EIGER (2a), in the name of his brother, cites proof for the view
of the Rashba from the Gemara's first version ("Lishna Kama"). Why does the
Gemara conclude that if partners must agree to build a wall then it must be
that Hezek Re'iyah is not considered Hezek? Perhaps the Mishnah writes that
they must agree to build a wall because if they do not agree, it is not
necessary to build it in accordance with the Minhag ha'Medinah, because one
can build a thin wooden fence in his own portion of the Chatzer!
Rebbi Akiva Eiger refutes this proof in the same way that he refutes the
Rif's proof (as mentioned in the previous Insight). If the Mishnah would be
discussing a situation in which one of the neighbors wants to build a thin
wall in his own portion of land, then why does it imply that this would not
be true with regard to the wall of a Ginah? If the neighbor of a Ginah
agrees to build a wall in his own domain which is not in accordance with the
measurements of the Minhag ha'Medinah, then it should be permitted for him
to do so, just as it is permitted when two Chatzeros neighbor each other
(according to the Rosh). Since the Mishnah *does* differentiate between a
Ginah and a Chatzer, it is evident that it is not discussing a situation in
which one of the neighbors wants to build the wall by himself.
3) DISMANTLING A "BEIS HA'KNESES"
QUESTION: The Gemara gives two reasons for the prohibition against
destroying one Beis ha'Kneses before building a new one. It is either
because we are afraid that the people will neglect rebuilding the new Beis
ha'Kneses, or because they will not have a place to pray in the meantime.
The Gemara then relates that Mereimar and Mar Zutra would dismantle and
rebuild the summer Beis ha'Kneses in the winter and the winter Beis
ha'Kneses in the summer. Why were they not afraid that the synagogues that
they dismantled might not be rebuilt since they did not rebuild the new one
before dismantling the old one?
4) THE WHIM OF ROME
(a) The TOSFOS YESHANIM (see MAHARSHA) explains that their construction
project did not involve building a different Beis ha'Kneses. Rather, they
made structural modifications to the existing building in order to
accommodate it for the conditions of winter or summer as necessary. The
Gemara says that when a weakness is found in the structure of a Beis
ha'Kneses, it is permissible to dismantle it in order to correct the
structural deficiency, even before building a substitute Beis ha'Kneses.
Here, too, the fact that the present Beis ha'Kneses was not fit to tolerate
the weather conditions of the season was considered as though the Beis
ha'Kneses had a structural deficiency and it was thus permitted to dismantle
(b) The Tosfos Yeshanim suggests further that when there is another Beis
ha'Kneses available, we are not concerned that the people will neglect
building a new one, since there is still a Beis ha'Kneses in which to pray.
This answer is consistent with the Girsa cited by the Mesores ha'Shas, which
states that we are worried about neglect even if there is a "place to pray,"
meaning an unoccupied house or other building (but which is not a Beis
ha'Kneses). If there is a fully-operative Beis ha'Kneses, though, then we
are not worried for neglect in rebuilding the old one.
This is also the answer of the RAMAH. The Ramah adds that even when there is
no other comfortable place to pray, an existing Beis ha'Kneses should not be
dismantled unless it is during a season in which it is not used. This is why
the Gemara emphasizes that Mereimar and Mar Zutra dismantled the summer Beis
ha'Kneses *in the winter* -- they would not have dismantled it in the summer
when it was in use.
(c) The RASHBA and Tosfos Yeshanim suggest further that the opposite might
be true. We are concerned for neglect only when there is another
fully-operative Beis ha'Kneses in which to pray. Since people are
comfortable going to the other Beis ha'Kneses, they might be neglectful
about rebuilding the second Beis ha'Kneses. However, when the other Beis
ha'Kneses is not as comfortable as the one that needs to be rebuilt, as in
the case of Mereimar and Mar Zutra (where the existing Beis ha'Kneses would
be uncomfortable in the summer), we are not afraid that the people will
neglect to rebuild the old Beis ha'Kneses. (This is consistent with the
other Girsa that is printed in our Gemara, which says that we are concerned
for neglect when there is "another Beis ha'Kneses," referring to a
fully-operative Beis ha'Kneses.)
(The Tosfos Yeshanim suggests a fourth answer which the TORAS CHAIM strongly
(d) The ROSH (1:4) writes that, indeed, Mereimar and Mar Zutra maintain that
the only reason a new Beis ha'Kneses must be built before the old one is
dismantled is in order that there be a place to pray. Since they had another
Beis ha'Kneses, they were permitted to dismantle the winter Beis ha'Kneses
during the summer. Does this mean that this is the Halachic opinion and we
are not concerned for neglect?
The Rosh and other Rishonim write that the Gemara later seems to favor the
first opinion, that we *are* concerned for neglect. Ravina suggests that
perhaps it is permitted to dismantle a Beis ha'Kneses if the money and
building materials for a new Beis ha'Kneses are already prepared. If the
problem with dismantling the old Beis ha'Kneses is that there might not be a
place to pray, then what difference does it make if the building materials
are prepared? The problem with dismantling an old Beis ha'Kneses before
building a new one is that we are concerned that the rebuilding of the new
Beis ha'Kneses will be neglected. That is why there is no concern for
neglect when the construction of the new Beis ha'Kneses has begun (by
preparing the building materials).
The RAMAH writes that the same conclusion can be drawn from the conclusion
of the Gemara in which the Gemara says that Bava ben Buta was correct in
telling Hurdus to dismantle the Beis ha'Mikdash before reconstructing the
new structure, since "Malchusa Sha'ani d'Lo Hadra Bei" -- the king does not
change his mind. However, when the Beis ha'Mikdash was dismantled, there was
no other place to bring Korbanos. What difference does it make if the king
will not change his mind? It should still be prohibited to dismantle the
Beis ha'Mikdash even temporarily because we will not be able to bring the
Korbanos in the interim! It must be that the concern is only for neglect in
rebuilding it, and in the case of a king there is no concern for neglect.
The TORAS CHAIM and RASHASH do not agree with this analysis. Even during the
three years during which the Beis ha'Mikdash was dismantled, they were not
Mevatel the Korban Tamid, since the Gemara teaches in Megilah (10a) that
"Makrivin Af Al Pi she'Ein Bayis" -- when building the Heichal it is
permitted to offer the Korbanos as long as the Korbanos are brought in the
place of the Mizbe'ach.
The Ramah might mean that although most Korbanos can be brought in the
manner described in Megilah (10a), there are some annual Korbanos that
cannot be brought in that manner, such as the Par and Se'ir of Yom Kippur,
the blood of which must be sprinkled in the Kodesh ha'Kadoshim, on the
Paroches, and on the Mizbe'ach ha'Ketores. At the moment that the Beis
ha'Mikdash was dismantled, there was no place to bring those Korbanos until
it was rebuilt.
QUESTION: The Gemara explains that Bava ben Buta permitted Hurdus to
dismantle the Beis ha'Mikdash in order to rebuild it without first building
a substitute, because "Malchusa Sha'ani d'Lo Hadra Bei" -- the king does not
change his mind. Thus, there was no risk that Hurdus would not complete his
How could they be so certain that Hurdus would finish the project that he
started? The Gemara later tells us that Hurdus was subject to the whims of
the Roman Empire, and he was able to get away with rebuilding the Beis
ha'Mikdash only because he built it before Rome could find out about it. It
would seem that the principle that a king does not change his mind would not
be applicable, since Hurdus did not have unlimited power! (RASHASH)
ANSWER: The reason a king always completes what he starts is because he
realizes that if he does not keep his commitment, his power over the kingdom
will be weakened. For this reason, Hurdus would never begin a project unless
he was absolutely certain that he would be able to complete it and that he
would not be stopped by the powers in Rome. The Gemara is saying that Bava
ben Buta felt comfortable leaving the decision to reconstruct the Beis
ha'Mikdash in the hands of Hurdus, because he knew that Hurdus would not
begin the project and dismantle the Beis ha'Mikdash unless he was absolutely
certain that he would be able to complete the project and not risk weakening
his power over the kingdom. (M. Kornfeld)