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Kollel Iyun Hadaf, Jerusalem

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Bava Basra 6



(a) We just asked whether we apply 'Mah Lo Le'shaker' when it clashes with the Chazakah of 'Ein Adam Pore'a Toch Zemano'. We try to resolve this She'eilah from the Reisha of our Mishnah 'be'Chezkas she'Nasan ad she'Yavi Re'ayah she'Lo Nasan' - which must be speaking when Shimon claimed le'Achar Z'man that he paid Toch Z'man (because if he claimed le'Achar Z'man that he paid le'Achar Z'man, there would be no Chidush), proving that we do say 'Mah Li Le'shaker be'Makom Chazakah'.

(b) We refute this proof - by establishing that each row is considered Zemano (in which case there is no Chazakah, as we explained earlier).

(c) We then attempt to resolve the She'eilah from the Seifa of our Mishnah 'be'Chezkas she'Lo Nasan ad she'Yavi Re'ayah she'Nasan' - which must be speaking when Shimon claimed le'Achar Z'man that he paid Toch Z'man, (because if he claimed le'Achar Z'man that he paid le'Achar Z'man, why should he not be believed?), proving that the Chazakah overrides 'Mah Li Le'shaker be'Makom Chazakah'.

(d) We refute this proof too, however - like we explained earlier, that in such a case, a person would not pay before being ordered to, even after the expiry-date.

(a) Rav Acha B'rei de'Rava tried to resolve our She'eilah from the Mishnah in Shevu'os. In the case 'Manah Li be'Yadcha, Amar Lo Hein', if, on the following day, when the creditor asks for the money, the debtor replies ...
1. ... 'Nesativ Lach' - the Tana rules that he is believed.
2. ... 'Ein Lach be'Yadi' - he rules that he is not.
(b) Rav Acha establishes 'Nesativ Lach' to mean 'Paraticha bi'Zemani', and he tries to interpret 'Ein Lach be'Yadi' - to mean that he claims now that he paid Toch Zemano (resolving our She'eilah to the strict side).

(c) We reject this proof however, by establishing 'Ein Lach be'Yadi' as a denial that he owes him, which is worse than claiming that he paid him Toch Zemano - because, as Mar said 'Whoever denies having borrowed admits to not having paid'. Consequently, since the debtor already admitted that he owes the creditor, he remains obligated to pay.

(a) When Rav Huna says 'Samach le'Palga, Samach le'Kula', he means - that if Reuven built a wall parallel to Shimon's, but only along half its length, he is nevertheless obligated to pay half the costs of the entire wall, as if he had built it along the entire length, because it is only a matter of time before he extends it.

(b) Rav Nachman holds - that he only shares the costs of as much of the wall as he built parallel to.

(c) When we say that ...

1. ... Rav Huna concedes to Rav Nachman be'Karna ve'Lufsa' we mean - that he agrees that if Reuven's wall was part of a small extension to his house which ended half way along the wall, he only needs to share the costs of half the wall.
2. ... Rav Nachman concedes to Rav Huna be'Afriza u've'Akva'ta di'Keshuri', we mean - that, assuming Reuven' wall to be only half the height of Shimon's, if he then prepared ledges along the top to place the ends of planks, in a way that indicated his intention to build an attic on top of the space in between the two walls, then he has to share the entire costs of Shimon's wall.
(a) If, in connection with the previous case, *Shimon* raises the height of his wall, leaving ledges in the wall for Reuven to place the ends of his planks, Reuven will be likely to claim - that he built the wall jointly with Shimon; otherwise, why would Shimon now prepare to accommodate his intended extension?

(b) If he does, we will not uphold his claim - because Shimon can counter that he only did it in anticipation of Reuven coming to terms with him.

(a) Rav Nachman holds that a Chazakah for small beams is not a Chazakah for large ones, but the other way round, it is. Rav Yosef maintains - that a Chazakah for one is a Chazakah for the other.

(b) They are referring (not to the three-year Chazakah of Karka, which will be discussed at length in the third Perek, but) to a Chazakah of 'Tashmishin' (the right to use, that, by virtue of the owner's silence when his neighbor does something that encroaches on his exclusive ownership, his neighbor earns). And it takes effect immediately.

(c) The reason for this (based on the principle 'Shesikah ke'Hoda'ah Dami') is - because if the owner had not granted that permission, he would have protested immediately.

(d) For the Chazakah to take effect, the neighbor must claim - that the owner actually granted him permission to do whatever he is doing. Merely to claim that the owner's is proof that he does not object, will not suffice (just as it does not suffice by the three-year Chazakah of land, as we shall see in the third Perek).

(a) The second Lashon quotes Rav Nachman - like Rav Yosef in the first (in which case Rav Yosef does not argue with him).

(b) We cite exactly the same Machlokes with regard to ...

1. ... 'Natfi' - which is a Chazakah that Shimon allows water to drip from Reuven's roof on to the entire length of his Chatzer.
2. ... and 'Shifchi' - which is a similar Chazakah, but which allows Reuven to pour sewage into Shimon's Chatzer via a drain-pipe (at only one particular spot), which, we assume, Shimon prefers.
(c) In this case too, there is a second Lashon. And again, Rav Nachman holds like Rav Yosef in the first, only he adds 'Aval li'Tzerifa de'Urvena, Lo', by which he means - that water leaking from the thatched willow-branch roof of a cabin, will not be covered by a Chazakah to pour his sewage via a drain-pipe, because there, the water drips furiously, in a way that is unacceptable to the owner of the Chatzer.

(d) Rav Yosef - disagrees. According to him, a Chazakah for the one is a Chazakah for the other.




(a) Rav Nachman Amar Rabah bar Avhuhah permits someone who rents a room in a large house the use of any projectiles on the outside of the house, and the thickness of the walls, up to four Amos. The significance ...
1. ... of the four Amos is - even if this extends beyond the inside of the room that he rented.
2. ... of the thickness of the wall is - confined to the width of the wall on the roof, assuming that he rented the attic.
(b) Rabah bar Avuhah does not however, permit the tenant to use the wall next to the Tarbatz Apadni - which is a small area just outside the entrance to higher quality houses, designated for flowers and plants.

(c) Rav Nachman himself permits that too, though he concedes that the tenant has no rights on the Rechavah she'Achorei ha'Batim, which is - an area behind the house (generally designated for wood storage).

(d) Rava grants him - even that.

(a) Ravina rules that the Keshura di'Metalelasa (beams that Reuven leans against Shimon's wall for shade) is a Chazakah only after thirty days. Not straightway (like the previous cases) - because the owner, assuming that it is only for temporary use, does not object in the short-term.

(b) It will it be considered a Chazakah ...

1. ... already after seven days however - if the beams are paced there as a roof of a Sucah on Succos (because then, the owner would normally object the day Succos was over.
2. ... straightway - if in addition, they were cemented in place (because then, he would object immediately).
(a) Abaye obligates Reuven and Shimon, who live on opposite sides of the street, to put a Ma'akeh (a parapet of four Amos) along opposite halves of the side of the roof that faces the other one (e.g. one of the north half of his wall, the other, on the south side of his), extending it slightly beyond the half-way mark, to avoid Hezek Re'iyah.

(b) Abaye specifically mentions 'on opposite sides of the street' (not to preclude neighbors who live next to each other in a Reshus ha'Yachid, but) - to teach us that even there (where Reuven might attempt to absolve himself from building at all, by arguing that since [due to the B'nei Reshus ha'Rabim], Shimon has to build a Ma'akeh along the entire length of his roof anyway), why should he [Reuven] have to build one at all), the joint obligation stands.

(c) Shimon can present three reasons why Reuven bothers him more than the B'nei Reshus-ha'Rabim: 1. because the B'nei Reshus-ha'Rabim can only see him only with difficulty, whereas Reuven can watch him with ease; 2. because he intends to use his roof during the night; 3. because he intends to use it in a sitting position. And in both of the latter cases, the B'nei Reshus-ha'Rabim cannot see him at all, whereas Reuven can.

(d) Abaye needs to teach us that both Reuven and Shimon must each build half the Ma'akeh - in a case where Reuven built half the parapet of his own volition, in which case we might have permitted Shimon to force him to finish what he began, as long as he pays his costs.

(e) Reuven can counter - that he declines to extend the parapet any further, for the same reason that Shimon declines to build one at all; namely, on account of the damage the weight does to the wall of the house.

(a) Rav Nachman Amar Shmuel requires a Ma'akeh of four Amos to divide between Reuven's roof and Shimon's adjoining Chatzer - but none at all for two adjoining roofs.

(b) Rav Nachman himself requires a partition of ten Tefachim. We have a problem with this Shiur however, because initially, we think that to avoid ...

1. ... Hezek Re'iyah, the Mechitzah must be - four Amos.
2. ... the possibility of either of them slipping across to steal - any height that restricts the movements of the next-door neighbor.
3. ... the goats belonging to either one from skipping across to the other's roof - high enough to stop a goat from jumping across (which in any event, is less than ten Tefachim).
(c) In fact, we reply, Rav Nachman requires a Mechitzah of ten Tefachim - to prevent the possibility of either of them slipping across to steal, because if it is less than that, the neighbor will be tempted to climb over and, if caught, claim that he had crossed it in order to retrieve something of his that fell over the wall.

(d) According to Rav Nachman, when the Tana of the Beraisa says 'Im Hayah Chatzero Gavohah mi'Gago shel Chavero, Ein Nizkakin Lo', he means - that it does require a Mechitzah of four Amos, though it does require one of ten Tefachim.

(a) According to Rav Huna, if Reuven's Chatzer is higher than Shimon's, Shimon builds the wall up to Reuven's Chatzer (see Tosfos DH 'Sh'tei'), and Reuven builds four Amos upwards from there into his Chatzer. Rav Chisda - obligates Reuven to help Shimon build the lower half of the wall, too.

(b) We rule like Rav Chisda - because he has a Beraisa to support him.

(c) The Beraisa adds - that in a case where Reuven's Chatzer is higher than Shimon's roof, it does not require a Mechitzah (which Rav Nachman explained a little earlier).

(a) In the case where Reuven lived in the ground-floor apartment, and Shimon in the upstairs one - the walls simply sunk (partially) into the ground, making living in the lower low-ceilinged apartment extremely uncomfortable. So Reuven asked Shimon to help him rebuild both apartments.

(b) Initially, Shimon replied - that he was perfectly comfortable (and it was therefore Reuven's problem).

(c) When Reuven ...

1. ... asked for permission to demolish the building and build a new one - he declined, on the grounds that he had nowhere else to stay.
2. ... even offered to rent him somewhere to live in the interim - he replied that it was too much trouble to move. If need be, he concluded, Shimon would have to walk around his house doubled over.
(d) Rav Chama upheld Shimon's argument. Reuven could however, have forced Shimon's hand - if the ceiling had sunk to a height of less than ten Tefachim (because the air-space up to ten Tefachim is Meshubad to Reuven).
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