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Bava Basra, 60

BAVA BASRA 60 - sponsored by Harav Ari Bergmann of Lawrence, N.Y., out of love for the Torah and for those who study it.


QUESTION: The Mishnah teaches that a person living in a jointly-owned Chatzer cannot made additions to his house, but he may build a room within his house or an attic atop his house. The Gemara explains that the room may be built only by dividing a pre-existing room, but not by adding an additional room. The attic, or upper story ("Aliyah"), may be built with an "Apsa" (an apse). The RASHBAM explains that an Apsa refers to a small room on the side of a house which has a lower roof than the rest of the house. His source is the Mishnah later (61a) which implies that an Apsa is a "Yatzi'a," meaning a side-room. How, though, is this related to an upper story? The Rashbam explains that when the Mishnah says that one may build an upper story on the house, it is referring back to the previous sentence which says that one may build an additional room by dividing a pre-existing room into two (with a vertical partition). The Mishnah means that after dividing a room into two, he may divide the additional room (that he has just made) with a horizontal partition, thus making a two-story Apsa.

Why does the Rashbam explain that the person divides only the back room? It should be just as permitted to make a second story with the entire house! The Rashbam seems to derive this from the words of the Gemara which explain that the Aliyah was over the Apsa, but not over the entire house. Our question, though, can be asked on the Gemara -- why does the Gemara itself allow only a division to be made over the Apsa? (MAHARSHA, RASHASH)


(a) The YISHUV DA'AS (of Rav Chaim Kanievsky, shlit'a, in KOVETZ MEFARSHEI MAHARSHA) explains that it is true that the Halachah of our Mishnah would apply even if the person divides the height of his entire house. However, a person does not normally lower the ceiling of his living quarters, because the ceiling was not built higher than necessary in the first place. Therefore, he would only divide the ceiling of the extra room that he built for the guests (which is considered temporary quarters) and could be used even with a lower ceiling.

The ARUCH (Erech Apsa) and the RASHBA explain that the Apsa mentioned in our Gemara *is* referring to a second story (a normal Aliyah), as is the Apsa mentioned later (61a; see RABEINU GERSHOM there).


QUESTION: If a person moved his wall -- that was adjacent to Reshus ha'Rabim -- away from Reshus ha'Rabim into his own property, and then he decided to move his wall back to its original location, Rebbi Yochanan does not permit him to do so. His reasoning is because the public has already attained permission to walk through that area and, consequently, it has become public property. However, he *is* allowed to extend protrusions ("Zizim") from his wall into the area that the wall used to cover. The Gemara implies that even if he did not build these Zizim originally, he is allowed to add them even after the public has started walking there.

If the public has already attained rights to the area by walking through it, then why is it permitted for the owner to extend Zizim from the wall into the public property? (KOVETZ SHI'URIM)

ANSWER: The KOVETZ SHI'URIM answers that when a person withdraws his wall into his own property, it is as if he is saying that the public may acquire only what he wants to offer to them. We assume that the person was only offering the public the rights to walk in that area, but not the rights to prevent him from extending his Zizim into that area. (It seems that it is permitted to add protrusions only above the height of a walking person so that the people walking there will not be impeded.)

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