THOUGHTS ON THE DAILY DAF
brought to you by Kollel Iyun Hadaf of Har Nof
Rosh Kollel: Rav Mordecai Kornfeld
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Bava Basra, 7
BAVA BASRA 7 (Nisan 14) - dedicated by Rabbi Kornfeld's father l'Iluy
Nishmas his grandmother, Chayah bas Aryeh Leib Shpira (nee Sole), on the day
of her Yahrzeit.
1) A HOUSE THAT SINKS
QUESTION: The Gemara discusses a case in which a two-story house began to
sink into the ground. The owner of the ground floor demanded that the owner
of the upper floor help him rebuild the house, and the owner of the upper
floor refused. Rav Chama ruled that the owner of the upper floor is not
required to help the owner of the lower floor restore his dwelling, and he
is not even required to move to a different house -- even at the expense of
the owner of the lower floor -- in order to let the owner of the lower floor
repair his dwelling at his own expense. However, if the house has sunk into
the ground so much that the upper floor is now within ten Tefachim of the
ground, the owner of the lower floor can force his upper neighbor to help
him restore the house, since those ten Tefachim are the exclusive domain of
the owner of the lower floor.
2) OBSTRUCTION OF LIGHT
The ROSH explains that when the lower floor is left with less than ten
Tefachim, the owner can force his upper neighbor to help him demolish the
structure and rebuild it anew (before it sinks entirely into the ground).
Even though ten Tefachim is the minimum height necessary for living space
(as the Gemara says in Sukah 3a), why, though, does the owner of the lower
floor have no recourse until he no longer has ten Tefachim? Since he
originally had, for example, twenty Tefachim of height in which to live, all
of that space should be the exclusive domain of the lower neighbor! Once the
upper floor encroaches into that height (of twenty Tefachim), the lower
neighbor should be able to force the upper neighbor to help restore the
house! Indeed, we see that the owner of the lower floor is entitled to the
height he had originally from the fact that when they demolish the house and
rebuild it, he is entitled to his original height. (ME'IRI, KOVETZ SHI'URIM)
(a) The ME'IRI cites in the name of the "CHACHAMIM HA'TZARFATIM" that the
Gemara is referring to a case in which the two owners stipulated when they
originally built the house that if the house sinks, then the upper neighbor
will be entitled to live in the space of the lower neighbor. (This condition
still does not entitle the upper neighbor to use the ten Tefachim of height
from the ground, because then the lower neighbor will have nowhere to live.)
The Me'iri rejects this answer, saying that the Gemara makes no indication
that any condition of that sort was made.
(b) The AYELES HA'SHACHAR answers that since it frequently happens that the
foundation of a house sinks a little into the ground, it is not practical to
force the upper neighbor to demolish the house and rebuild it every time it
sinks a little into the ground. Only if it sinks so much that the lower
neighbor no longer has ten Tefachim may he force the other owner to rebuild.
(See YOSEF DA'AS.) (I. Alsheich)
QUESTION: Two brothers (Reuven and Shimon) divided property that they
inherited. Reuven took a hall, and Shimon took the garden next to the hall.
Shimon began building a wall on the garden between the garden and the hall.
Reuven claimed that the wall would block his light, while Shimon claimed
that the wall was on his own property. Rav Chama ruled that Shimon is
entitled to build the wall.
The Gemara asks that even when Reuven compensates Shimon for the value of
the stones and building materials that he received, and not for the right to
open air-space and light, Reuven should still be able to claim that he
initially accepted the hall with the understanding that it would be useful
and have light, and now he is receiving only a dark room.
Rav Simi bar Ashi answers that even a darkened hall is still called a hall,
and thus Reuven still has the same thing that he initially received. The
Gemara cites a Beraisa to support this assertion. The Beraisa says that if a
person sells an "orchard" to a purchaser, and it turns out that there are no
fruits growing in the orchard, the sale is binding when such a field is
called an "orchard."
The RASHBA asks that the Beraisa is no support for Rav Simi bar Ashi's
answer. In the case of the Beraisa, the seller initially sold the orchard
without any fruit in it. In the case of our Gemara, though, this brother
initially received a hall with light, and only afterwards did the other
brother take that light away by building the wall. It is comparable to a
case in which one sells an orchard *with* fruit, and then the seller goes
and picks all of the fruit. In such a case, the fruit certainly belongs to
the buyer (even if a field with no fruit is also called an orchard)! Here,
too, the first brother has also acquired the right to have light in his
hall, and the other brother may not take it way from him! Why, then, does
the Gemara bring support for Rav Simi bar Ashi's answer from the Beraisa?
ANSWER: The RASHBA answers that the comparison with the case of the Beraisa
is indeed accurate. In the case of the brothers who inherited a hall and a
garden, the brother who received the garden is not actively taking away the
light that the other brother already received. Rather, he is indirectly
causing the light not to reach the hall. Hence, the hall is effectively the
same hall that he received initially.
The KOVETZ SHI'URIM explains that this explanation of the Rashba is the
answer to TOSFOS' question on RASHI here. Rashi (DH b'd'Nafsha'i) writes
that the owner of the garden may build his wall because the owner of the
hall does not have a Chazakah of three years to have light in his hall.
Tosfos asks how this could be a reason to permit the owner of the garden to
completely darken the other's hall. The Kovetz Shi'urim explains that
Tosfos' question is that the brother who is building the wall is actively
damaging ("Mazik b'Yadayim") the other brother's property by blocking the
light, even though he is building the wall on his own property.
Rashi, in contrast, learns like the Rashba, who explains that blocking light
is not considered "Mazik," but rather it is an indirect result of building a
wall. Therefore, the garden-owner is allowed to build the wall as long as
the hall-owner has not established his rights to receive light with a
Chazakah. (I. Alsheich)
3) SPEAKING WITH ELIYAHU HA'NAVI
QUESTION: The Gemara relates that a certain Chasid built a Beis Sha'ar, an
outer gatehouse, outside of his courtyard (preventing people from entering
his courtyard). The Beis Sha'ar prevented poor people from entering the
courtyard to collect charity. As a result, Eliyahu ha'Navi stopped speaking
to the Chasid.
Why does the Gemara need to point out that Eliyahu stopped speaking to the
Chasid? The Gemara should simply say that building a Beis Sha'ar which
prevents poor people from entering is not a proper thing to do!
(a) The CHAZON ISH (4:7) explains that the Gemara is mentioning this
incident in order to teach that when one reaches the level of Chasidus in
his Avodas Hashem, he merits that Eliyahu reveals himself to him and speaks
to him regularly. Conversely, if a Chasid acts uncharacteristically and does
an act that causes a loss to poor people, Eliyahu refrains from speaking to
(b) The Chazon Ish writes further that had the Gemara not mentioned this
incident, we might have thought that a person is not required to suffer a
loss of privacy ("Hezek Re'iyah") and refrain from building a Beis Sha'ar
for the sake of the poor people (so that they should be able to enter his
courtyard). We might have thought that enabling poor people to enter one's
courtyard is not part of the obligation of Tzedakah, if the homeowner
suffers a loss of privacy as a result. This was the reasoning of the Chasid.
Eliyahu taught him that it is Midas Chasidus to refrain from building a Beis
Sha'ar when the poor people will suffer, even if not having a Beis Sha'ar
will cause a loss of privacy to the homeowner (see YOSEF DA'AS). (I.