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Bava Basra, 21

BAVA BASRA 20-25 - sponsored by Harav Ari Bergmann of Lawrence, N.Y., out of love for the Torah and for those who study it.


QUESTION: The Gemara states that one of the homeowners in a jointly-owned courtyard may not rent his house to a Mohel, a blood-letter, a wool-comber, or to a non-Jewish elementary school teacher, because all of these occupations will cause a significant increase in the noise level in the courtyard.

Why does the Gemara prohibit only *renting* out one's house for those purposes? It should also prohibit one from *selling* his house to anyone involved in those occupations! (RASHASH)


(a) The RASHASH answers that it is obvious that selling a house to someone who will create a significant disturbance in the courtyard is prohibited. The Gemara is teaching that even *renting* a house for such a purpose is prohibited, even though a rental might be only for a short time. The Gemara is teaching that even a temporary disturbance is also prohibited.

(b) The Rashash answers further that the MORDECHAI rules that it is *permitted* to sell a house for these purposes. The reason is because the neighbors always have the option to protest when the new owner begins to make noise in the courtyard, and they will be able to take him to Beis Din and force him to stop causing the disturbance. (According to this answer, if the buyer is not Jewish and will not agree to go to Beis Din, then it could be that the owner indeed is not allowed to sell his house to him.)

Why, though, do we not say the same thing with regard to a rental? The owner should be permitted to rent out his house to anyone he wants, and if the renter creates a disturbance, the neighbors should just bring the renter to Beis Din!

The S'MA (CM 156:8) answers that when a person buys property, he does not always intent to use it immediately for a noisy purpose. The purchaser might decide to leave it as a residential domicile for his family. Therefore, the noisy usage and the disturbance caused is not a certainty; it is not "Bari Hezeika." Hence, the owner cannot be prevented from selling it. If the buyer later decides to use the house for a noisy purpose, the neighbors can then summon him to Beis Din. In contrast, when one rents property, one usually uses it immediately for the purpose for which he rented it. Therefore, it is "Bari Hezeika," and therefore the owner is not allowed to rent out his house to someone who wants to use it for a noisy purpose. (Y. Marcus)


QUESTION: Rav Huna says that if a person who was living in a semi-public alley ("Mavoy") set up a mill to grind flour, and his neighbor in the Mavoy later decided to build a second mill there, the first neighbor can prevent him from building a second mill. He can claim that the second neighbor will be taking away his customers, and thus his livelihood, by setting up a second mill.

The Gemara attempts to cite proof for Rav Huna's ruling from the Halachah that if a fisherman had already found the hole in which a fish was living, he can prevent other fishermen from spreading their nets up to a radius of one Parsah from the hole, even though he has not yet caught the fish himself. This seems to support Rav Huna's ruling that the first person can prevent the second person from taking away his potential livelihood.

TOSFOS (DH Marchikin) asks that this Halachah concerning the fish seems to contradict the principle taught by RABEINU TAM concerning the Halachah of "Ani ha'Mehapech b'Chararah" (see Kidushin 59a). If a person is trying to buy an object or obtain a job and a second person preempts him, the preemptor is considered a "Rasha." Rabeinu Tam maintains that if the second person preempts the first in picking up an object of Hefker, he has not done anything wrong and he is *not* considered a Rasha, because he would not have been able to acquire this object elsewhere, and thus he is entitled to take it first.

According to Rabeinu Tam, why are the other fishermen not allowed to spread their nets when the first fisherman has his net directed at a certain fish? The fish is Hefker, and the other fishermen will not be able to find such a fish elsewhere!

Tosfos (Kidushin 59a, DH Ani) answers in the name of RABEINU MEIR (the father of Rabeinu Tam) that the case of the fishermen is referring to where the first fisherman lowered into the water a dead fish which attracted all of the other fish. Since the first fisherman has performed an action to attract the other fish, his colleagues are not allowed to take away those fish from him even though they are Hefker.

The KETZOS HA'CHOSHEN (273:4) challenges this answer from another Gemara in Kidushin. The Gemara in Kidushin (25b, according to the explanation of Tosfos there) explains how it is possible to acquire an elephant with a Kinyan of "Hagbahah" (lifting it up) -- the purchaser lifts tree branches above the elephant's head so that the elephant jumps up to eat them. Since the elephant raises itself as a result of the purchaser's action, it is considered as though he has done "Hagbahah" and lifted up the animal, and thus he fully acquires the animal.

Why, then, does Tosfos say that if the other fishermen take the fish, they are considered to be infringing on the first fisherman's livelihood? If the other fishermen take the fish after the first fisherman lures them to come by placing a dead fish there, they are *stealing* from him, and not merely infringing on his livelihood! The first fisherman has already acquired the fish!

ANSWER: The NESIVOS HA'MISHPAT (273:3) answers this question by distinguishing between a direct action and an indirect action on the part of the purchaser. The purchaser can acquire the elephant only if he actually holds the tree branches at the time the elephant jumps up to eat them. If he had already let go of the branches, he is only *indirectly* causing the animal to jump up, and he is not considered to be doing a Kinyan of "Hagbahah."

The Gemara in Kidushin (22b) says that if one calls to an animal and, as a result, the animal comes to the caller, it is considered as though the person pulled the animal with his hands and it is a valid Kinyan of "Meshichah." In contrast, when the first fisherman placed the dead fish there and then went away, he did not directly cause the fish to come, and therefore he does not fully acquire the fish that come. Someone who then takes the fish away is not stealing from him, because he did not own the fish in the first place. Rather, someone who takes away the fish is considered a "Rasha," for he limits the first person's livelihood before the first person has acquired the object. (Y. Marcus)

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