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Bava Basra, 17


QUESTION: The Gemara states that "over three people the Yetzer ha'Ra had no dominion" -- Avraham, Yitzchak, and Yakov, and some say even David ha'Melech.

If the Yetzer ha'Ra had no control over them, then how could they receive reward in Olam ha'Ba for the Mitzvos that they did in this world? With no influence of the Yetzer ha'Ra, their Bechirah, free choice, was entirely restricted, such that there was no option but to choose to do good. How, then, could they be rewarded for doing good?

ANSWER: TOSFOS explains that their Yetzer ha'Ra was not entirely curtailed. Rather, since Hashem saw that they made great efforts to avoid sinning, Hashem helped them and did not let the Yetzer ha'Ra influence them. This is based on the Gemara in Yoma (38b) which derives from the verse, "He guards the feet of His righteous ones" (Shmuel I 2:9), that once a person lives a majority of his life without sinning, he receives Divine assistance and is able to live the rest of his life free of sin.

The BIRKAS AVRAHAM explains this further based on the words of the RAMBAM in Hilchos Teshuvah (6:2). The Rambam explains how the verse, "And I will harden his (Pharaoh's) heart" (Shemos 4:21), can be reconciled with the concept of free choice. The Rambam explains that since Pharaoh initially sinned by his own choice and oppressed the Jewish people, Hashem hardened his heart later, taking away his ability to choose to do good. Conversely, our Gemara is teaching that by always defeating one's Yetzer ha'Ra and choosing to do good, one can merit Divine assistance to the extent that Hashem removes from him the urge to do evil and, in effect, takes away the person's Bechirah. However, for this itself a person is rewarded, since it is because of his own efforts that his Bechirah has been taken away. (I. Alsheich)

OPINIONS: The Mishnah states that one may not dig a Bor (pit) next to the Bor of his neighbor, unless he distances his Bor at least three Tefachim from the wall of his neighbor's Bor.

The Rishonim discuss what types of Bor the Mishnah is discussing, and what is the potential damage that will be caused by digging a Bor next to another Bor.

(a) TOSFOS writes that when the Mishnah says that one who wants to dig a Bor must distance it at least three Tefachim from his friend's, it is referring to a *water* cistern, a Bor that is used to hold water. A *dry* Bor, on the other hand, *may* be dug within three Tefachim of the neighboring Bor. The reason why a Bor used to hold water must be distanced is because the moisture will damage the wall of the neighbor's Bor.

Tosfos, however, questions this explanation from the Gemara later (17b) which says that the neighbor can claim that "each thrusting of your shovel is weakening my land," which implies that it is the digging, and not the water, that damages his land, and thus the Mishnah would seem to be referring to all types of pits.

Tosfos answers that the Gemara means to say that the damage of constructing a Bor adjacent to another Bor begins at the moment that one starts to dig and it is thus considered "Girei Dilei" (arrows that one shoots which cause damage), in which case Rebbi Yosi agrees (as the Gemara later explains) that the owner of the damaging object is obligated to distance his object. However, the potential damage to the land caused by the shovel requires that he move only a minimal distance away, and it does not require him to move three Tefachim away. It is only because of the potential damage that will be caused by the water in the Bor that he must distance the Bor at least three Tefachim away from his neighbor's Bor.

The TOSFOS HA'ROSH (cited by the Shitah Mekubetzes) writes that a small amount of damage will be caused by the strikes of the shovel, but the major damage will be caused by the water that the Bor will hold. Once the Chachamim required the person to move his Bor because of the potential water damage, they also required him to move it because of the small damage that the shovel causes.

(b) The RAMBAN (cited by the Rashba, who himself learns like Tosfos) explains that the Mishnah's ruling applies equally to a *dry* Bor that does not hold water. The reason one must distance such a Bor at least three Tefachim from his neighbor's Bor is because, as the Gemara says, each thrusting of the shovel in the earth weakens the neighbor's land.

(c) The RA'AVAD (cited by the Shitah Mekubetzes to 19a) differentiates between a "Bor" and a "Shi'ach" or "Me'arah" (a Shi'ach is a narrow, elongated well, and a Me'arah is a cave-like structure that usually leads to a spring or water source). When the Mishnah says that one must distance the digging of a Bor at least three Tefachim from his neighbor's Bor, it refers even to a dry Bor, because of the strikes of the shovel upon the earth. When building a Shi'ach or Me'arah, on the other hand, one needs to distant them three Tefachim only when they will be used to hold water.

This difference, the Ra'avad explains, is due to the fact that a Bor is relatively deep, and thus the digging itself weakens the neighbor's land. A Shi'ach and Me'arah (and the other forms of pits mentioned in the Mishnah), in contrast, are not deep, and thus the act of digging them does not damage the neighbor's land. Rather, the damage is because of the water that they hold. (I. Alsheich)

QUESTION: The Mishnah states that one may not dig a Bor (pit) next to the Bor of his neighbor, unless he distances his Bor at least three Tefachim from the wall of his neighbor's Bor, so that the digging of his Bor not damage his neighbor's Bor (see previous Insight). The Mishnah here and throughout the rest of this Perek lists other requirements of "Harchakah," distancing a potentially damaging agent from one's neighbor's property.

This requirement to distance a potentially damaging object from someone else's property seems to fall within the Halachos of the Arba'ah Avos Nezikin and the general laws of Nizkei Mamon, damages caused to someone else's property, which was the topic of Maseches Bava Kama. Why, then, is this Perek taught in Bava Basra, and not in Bava Kama?

Moreover, we find that when the RAMBAM records these Halachos of "Harchakos," he does not record them in Hilchos Nizkei Mamon, but rather in Hilchos Shechenim. Why does he not include these Halachos in the laws of Nizkei Mamon?

ANSWER: The NESIVOS HA'MISHPAT (155:18) addresses this issue at length, and proposes that the laws of "Harchakos" of potentially damaging objects is *not* related to the laws of Nizkei Mamon, the obligation of a person to avoid causing damage to someone else's property (as we will explain below). Indeed, we find that the Halachos of "Harchakos" are not consistent with the Halachos of Nizkei Mamon. According to the Halachos of Nizkei Mamon, if a person or his property (such as his animal) causes damage to the property of someone else, he is obligated to pay for the damage (in part or in whole, depending on the nature of the damage done). However, the Gemara here (18b) teaches that when a person's bees eat the mustard plant of his neighbor -- an act of damage which would seem to be identical to the classic case of Nezek of *Shen*, wherein one's animal eats the property of someone else -- the owner of the bees does *not* have to distance his bees from the mustard plant. Moreover, the Gemara implies that he is *exempt* from paying for damage that the bees cause to the plant, for even where a person is *obligated* to distance his object from his neighbor's property, he is exempt for any damage that was caused! (See SHULCHAN ARUCH CM 155:33; end of RAMBAN's Kuntrus Dina d'Garmi; YAD RAMAH to 25a. We also find that the RA'AVAD infers from our Mishnah that the owner of the object is exempt from paying for damages, since the Mishnah says "Lo Yachpor...," phrasing the directive as merely a *prohibition* to dig a Bor adjacent to the neighbor's Bor, and it does not phrase the directive as a *monetary* obligation such as "One who digs a Bor near his neighbor's Bor is Chayav.")

Furthermore, we find that the Rishonim write that the obligation to distance a potentially damaging object from his neighbor's property is a Chiyuv *d'Rabanan* (RABEINU TAM in SEFER HA'YASHAR #616; MABIT in KIRYAS SEFER, Hilchos Shechenim 9), while the requirement to pay for damages of the Arba'ah Avos Nezikin are mid'Oraisa (as detailed in the first Perek of Bava Kama; with regard to the status of the *prohibition* to cause damage in the first place, see Insights to Bava Kama 2:3).

Why, though, is the requirement to distance a potentially damaging object different than the general obligation of Nezikin?

The Nesivos explains that the subject of our Perek is a potentially damaging object *inside* the owner's property. If the owner were to be held Chayav to pay for damage caused by these objects, or be prohibited to use these objects because of the risk of damage that they pose to the neighbor's property, then he would not be able to use them at all, even within the confines of his own domain. The Torah does not require a person to refrain from doing normal activities in his own domain due to a fear that the object might cause damage in someone else's domain without leaving its present location. On the contrary, the neighbor should be obligated to protect himself, and the owner of the object should maintain the right to use his own object in his own Chatzer. In contrast, the Arba'ah Avos Nezikin require that the owner of the Shor guard his Shor in his own domain so that it not go *out* of his domain and do damage. The obligation to guard his Shor inside of his domain does not limit or restrict what he can do within his own property.

Further explanation is given for this difference in SEFER TIFERES TORAH AL HA'SHAS (#33) by RABEINU HA'GAON RAV SHIMSHON PINCUS, zt'l. He explains that the law of the Mazik and the Nezikin (in Bava Kama) relates to a situation in which the Mazik enters the domain and the boundary of the Nizak. In contrast, the law of "Harchakos" (in Bava Basra) does not involve a Mazik that enters the domain of the Nizak at all. Rather, the owner of the object is using the object in his own domain, but the actual usage of the object in his own domain can cause damage to his neighbor's property. This form of damage, though, is not called "Mazik," since he has remained in his own domain and has not entered the domain of the Nizak at all. Rather, the question is whether his *rights of ownership* of his property include the right to use an object in his property that will cause damage to a neighbor. The question involves the nature of the rights of ownership, or Kinyan, and it does not involve the laws of Nezikin. (I. Alsheich)


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