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Bava Basra, 59

BAVA BASRA 59 (7 Sivan) - L'Iluy Nishmas Mrs. Grune Fradl bas ha'Rav Shmuel David Levinson (who passed away on 7 Sivan 5753), a true 'Isha Yir'as Hashem.' Dedicated by her son.


QUESTION: Rebbi Zeira states that a person is permitted to make a window in his wall that faces his neighbor's Chatzer, if he builds the window more than four Amos high, since he cannot peer out of it and cause Hezek Re'iyah to his neighbor. The Gemara says that even if the owner of the Chatzer wants to stop the owner of the house from building the window, he is not entitled to do so, because of the principle of "Kofin Al Midas Sedom" -- which literally means that we force a person not to act in the way that the people of Sedom acted. Since the owner of the Chatzer is not losing anything by his neighbor having a window there, he cannot stop his neighbor from building a window. Rebbi Ila'a argues and says that the owner of the Chatzer *is* entitled to stop the owner of the house from making the window. The Gemara initially assumes that the reason Rebbi Ila'a maintains that the owner of the Chatzer may prevent his neighbor from building the window is because he holds "Ein Kofin Al Midas Sedom" -- we cannot force a person to allow others to benefit when he is not losing anything as a result.

What does the window in the wall have to do with Midas Sedom? Midas Sedom applies to a situation in which others are benefiting from one person's property in a way that the owner of the property does not lose anything. In such a case it is possible that the owner may be entitled to stop the others from deriving benefit from his property, even though it is not proper for him to do so. In contrast, in the case of the window, the person who makes the window is not deriving any benefit from the property of the owner of the Chatzer! Why should the owner of the Chatzer be able to stop him from making the window, even if we rule "Ein Kofin Al Midos Sedom?" (KETZOS HA'CHOSHEN 154:1)

ANSWER: The KETZOS HA'CHOSHEN and REBBI AKIVA EIGER (Teshuvos 1:141) answer that the Gemara views the airspace of the Chatzer as the property of the owner of the Chatzer. If a person uses that airspace by looking out of a window through the Chatzer, or by receiving the air or light that comes through the Chatzer, it is considered a use of the Chatzer itself. This reasoning is expressed by the RASHBA earlier (17b).

RAV SHACH zt'l in AVI EZRI (Hilchos Shechenim 3:3) and the BIRKAS AVRAHAM ask how can airspace be considered to be *owned* by the owner of the Chatzer? If the air blows through the Chatzer, we do not find that it becomes the property of the owner of the Chatzer! We certainly do not say that when air blows through the Chatzer into the window of the owner of the adjacent house, or when the light shines through the Chatzer into the window, that the air or light becomes the possession of the owner of the Chatzer!

Perhaps the Rashba and the Acharonim mean that deriving benefit from the fact that the Chatzer has open space is considered a usage of the Chatzer, since this is the purpose for which the Chatzer was built. A person who did not build a Chatzer should not be able to derive benefit from the Chatzer that his neighbor built without receiving permission from the owner of the Chatzer, if not for the rule of "Kofin Al Midos Sedom." That is why the Gemara needs the principle of "Kofin Al Midos Sedom" in order to permit it.


OPINIONS: The Beraisa discusses a case in which a person builds windows into his wall that open into the Chatzer of his neighbor. Rebbi Yishmael rules that the owner of the windows has a Chazakah if his neighbor is silent and does not protest immediately. Rebbi Chiya argues and says that a person cannot make a Chazakah by doing an act that could inconvenience someone else, even if the other person does not protest immediately. The RASHBAM explains that Rebbi Chiya requires a Chazakah of three years in order to support the claim of the Machzik that he received permission to do what he is doing.

The Halachah follows the view of Rebbi Chiya. It seems from here that just as a Chazakah that proves the ownership of property requires three years of occupancy on the property, so, too, a Chazakah for *using* another person's property requires three years of usage. However, the Gemara earlier (6b) teaches that if a person rests his beams on his neighbor's wall for thirty days, he has made a Chazakah for using his neighbor's wall in such a way. The Gemara there continues and says that if the beams are supporting the Sechach of his Sukah, then even after seven days he has a Chazakah. This implies that it is not necessary to have three years of usage in order to make a Chazakah! What is the difference between these Halachos?

(a) Although the RASHBAM here requires three years in order to make this Chazakah, earlier (6a) the Rashbam writes in a Hagahah in Rashi that the Chazakah for using another person's property takes effect immediately. The TUR (CM 153) explains that the Rashbam holds that when giving permission to someone to use one's property for small forms of usage, it is not the practice to write a Shtar. Therefore, the Chazakah takes effect immediately if the owner does not protest, and the person using the property is believed to claim that he bought the rights to use the property for that purpose. In contrast, it *is* the practice to write a Shtar for *large* forms of usage, such as those mentioned in our Mishnah. Therefore, the Machzik can only claim that he bought the rights to that usage after he has used the property for three years, because within three years, the owner can demand to see the Shtar (see also Insights to 57a).

(b) The BA'AL HA'ME'OR maintains that three years are required to make any type of Chazakah, even a Chazakah of usage of another person's property. He explains that the Gemara earlier (6b) means that a person must use the property for thirty days *in addition* to three years.

Alternatively, the Gemara there is not discussing an actual Chazakah, but rather it is discussing the question of when the usage of a wall is considered proof that a person paid his share in building the wall, as RABEINU TAM explains (cited by Tosfos 6b, DH Hai). This is also the opinion of TOSFOS earlier (23a, DH v'Ha) and the ROSH there. (The RIVAM cited by Tosfos adds that it is not necessary to present any claim after using a person's property for three years. The other Rishonim, though, do not accept this opinion, and they require that the person present a claim (for example, that he bought the rights to use the property, or that the owner was Mochel to him the usage of the property).)

(c) The GE'ONIM cited by the RAMBAN (Milchamos, 6a, and in Chidushei ha'Ramban, 57a and 59b) explain that the Chazakah for using someone else's property does not require three years (as the Gemara earlier (6b) implies). Even though Rebbi Chiya rules that the Chazakah is not immediate, he does not say that three years are necessary. Rather, as soon as the usage has been continued long enough that it would be expected for the owner to protest, the Machzik has made a Chazakah. In the case of the beam (6b), using the neighbor's wall for thirty days proves that he has permission to use the wall.

The Ge'onim add that it is not necessary to present a claim of purchase or Mechilah, in contrast to the opinion of the Rashbam. According to the Ge'onim, the Chazakah of usage is inherently different from a Chazakah of ownership. People are more apt to be Mochel usage of their object than to be Mochel ownership of their object. The Chazakah required to *use* a person's object is necessary to prove that since the owner did not complain, he presumably was Mochel. Therefore, it is not expected for the Machzik to have a Shtar, and he does not need three years for his Chazakah.

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