(Permission is granted to print and redistribute this material
as long as this header and the footer at the end are included.)


prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem

Previous daf

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.



(a) We learned in our Mishnah that a full-length pipe is subject to Chazakah. The problem we have with this, according to Rebbi Yirmiyah bar Aba (who explains that 'Marzev Ein Lo Chazakah' refers to building underneath it) is - that seeing as his drain-pipe runs along the length of theChatzer, what difference does it make to him if the owner of the Chatzer builds underneath his pipe?

(b) There is no problem according to Shmuel and Rebbi Chanina' interpretation of 'Marzev Ein Lo Chazakah' - according to whom the Tana needs to inform us that one cannot force him to move his pipe to the other side, or that the owner of the Chatzer is not entitled to cut the pipe shorter.

(c) We answer that the Tana is talking about a pipe that is built in the form of a building - in which case he can complain that when the owner of the Chatzer underneath it, it weakens his pipe, causing it to break.

(d) Perhaps a Marzev is different because it is not sufficiently important to prevent the owner from building underneath it, even if it will cause it to fall down. Alternatively, we might explain the difference between a Marzev and a Mazchilah - in that a Marzev is normally made of wood, and will not be adversely affected by the building underneath it (whereas if it was made of stone, it would be subject to the same ruling as a Mazchilah).

(a) Rav Yehudah Amar Shmuel rules that if Reuven wants to dismantle a pipe from which water flows from his roof into Shimon's Chatzer - Shimon is entitled to object ...

(b) ... because he has as much of a Chazakah on Reuven's water, as Shimon has in his Chatzer.

(a) They asked the same She'eilah to Rebbi Oshaya, to Rebbi Chama and then to Rebbi Biysa. Rebbi Oshaya and Rebbi Biysa corroborated Shmuel's ruling.

(b) Whereas Rebbi Chama ruled that the owner of the Chatzer has no authority to stop the owner of the pipe from dismantling it.

(c) They quoted the Pasuk "ve'ha'Chut he'Meshulash Lo bi'Meheirah Yinasek" - with reference to Rebbi Oshaya, who happened to be the grandson of Rebbi Biysa, woth whose opinion he sided. It so happens, that Rebbi Chama was no stranger either; he happened to be Rebbi Oshaya's father (and Rebbi Biysa's son).

(a) According to de'Bei Rebbi Yanai - a Sulam ha'Mitzri has a maximum of four rungs.

(b) The Tana defines an Egyptian window, but not an Egyptian ladder - because Rebbi Yehudah argues with the Tana Kama in the former case.

(a) Rebbi Zeira restricts the Chazakah on a Chalon Tzuri (in our Mishnah) to one that is within four Amos from the ground. This means that ...
1. ... the owner of the Chatzer - needs to make a Mecha'ah only if the new window is below four Amos (failing which he will to leave a distance of four Amos between any subsequent wall and the window), but not if it is higher than that.
2. ... a Machzik who comes to open such a window has a Chazakah below if the window is within four Amos of the grounds, but not if it is higher.
(b) When Rebbi Zeira adds 've'Yachol Li'mchos' he means - that not only does the owner of the Chatzer not need to make a Mecha'ah, but he cannot stop the Machzik from opening a window above the height of four Amos.

(c) According to Rebbi Ila'a - he can (in spite of the fact that if he does open a window, he will not hav a Chazakah anyway.

(d) We suggest that they argue over 'Kofin Oso al Midas S'dom', in which case - Rebbi Zeira will hold 'Kofin' (meaning that we force the owner to accept the window, whilst Rebbi Ila'a holds 'Ein Kofin (and if he wants to protest, he may).

(a) We conclude however, that both opinions hold 'Kofin al Midas S'dom', and on principle, Rebbi Ila'a would agree with Rebbi Zeira. And the reason that he does not is - because the owner has a genuine fear that the Machzik will place a stool on his side of the wall in order to watch him through the window.

(b) Rebbi Zeira disagrees with this however, on the grounds - that a person would not have such Chutzpah.

(c) A case came before Rebbi Ami of someone who wanted to open such a window above the height of four Amos from the ground. Rebbi Aba (to whom Rebbi Ami sent them) ruled - like Rebbi Ila'a (upholding the owner's protest).

(d) We have already discussed Shmuel's opinion (though not by name) that if the window is to provide light, then even a Chalon ha'Mitzris is subject to a Chazakah - because light is something that one needs all the time, and which is therefore considered a permanent fixture.




(a) A 'Ziz' is - a ledge.

(b) The distinction the Mishnah makes between a Ziz which is at least a Tefach wide and one which is less, with regard to ...

1. ... a Chazakah is - that the former is subject to Chazakah, whereas the latter is not.
2. ... Mecha'ah is - that in the former case, the owner of the Chatzer can object, whereas in the latter, he cannot.
(c) The sort of damage we are concerned with in the case of a ledge a Tefach wide is - Hezek Re'iyah (that he will stand on the ledge and look into the Chatzer).
(a) Abaye interprets Rebbi Asi (or Rebbi Ya'akov) Amar Rebbi Mani's statement 'Hichzik be'Tefach, Hichzik be'Arba'ah' to mean - that if Reuven has a Chazakah on a ledge one Tefach wide along a length of wall that is four Tefachim, this automatically extends to a ledge which is four Tefachim wide ...

(b) ... because we assume that, once the owner does not object to the Machzik using four Tefachim along his wall, he will allow him a width of four Tefachim as well (since less than four by four Tefachim is not Chashuv, and therefore of no real use to the Machzik).

(c) If the Machzik made a Chazakah on a Ziz one Tefach wide by ...

1. ... ten Tefachim along the wall - his Chazakah also extends to one which is four Tefachim wide.
2. ... three Tefachim along the wall - that is what he is allowed (three Tefachim by one), and no more.
(a) 'Pachos mi'Tefach, Eino Yachol Li'mchos', we learned in our Mishnah. Rav Huna confines this prohibition to the owner of the ledge. This might mean that the Machzik cannot stop the owner of the Chatzer from building ledges on his wall. Alternatively, the Tana means - that he cannot stop him from using his ledge (seeing as he has the authority to remove it, if he so wishes).

(b) According to Rav Huna, the owner can however, stop the Machzik from fixing the ledge on his wall - because he is afraid that he will use it to look into his Chatzer.

(c) Rav Yehudah that 'Eino Yachol Li'mchos cuts both ways (not because he holds 'Hezek Re'iyah Lo Sh'meih Hezek', but) - because the Machzik can counter that, since the wall is only fit to use to place things on, whenever he uses the ledge, he promises to turn his face the other way (Consequently, he will be afraid to look into the Chatzer, so as not to be caught in the act).

(d) Rav Huna counters this - by pointing out that due to the thinness of the ledge and the precariousness of using it as he bends over from the roof, he can always claim that he turned round to face the Chatzer in order to avoid falling off the roof (even when this is not the case).

(a) Our Mishnah - prohibits opening new windows overlooking the public Chatzer of which one is a joint owner (because of Hezek Re'iyah).

(b) And if he purchased a room in an adjoining Chatzer or if he built an attic above his house, he is forbidden to build a door that opens from it directly into the Chatzer which he still owns jointly - because he causes an influx of visitors to pass through the Chatzer.

(c) The Tana permits this however - provided his guests enter the Chatzer via his house, and not directly, because one is not restricted as to how many guests one invites into one's home?

(a) The problem with our Mishnah teaching us the prohibition of opening new windows overlooking the public Chatzer which he owns jointly is - the implication that it is permitted if the Chatzer is privately-owned, which is not the case?

(b) We answer that the Chidush is greater in the case of a public Chatzer - because each person has to be on his guard because of the other residents anyway, so we may have thought that opening another window makes no difference (and is not considered 'Hezek Re'iyah').

(c) In spite of the fact that one has to hide from the other residents anyway, it is nevertheless forbidden to open a new window - because they can argue that whereas until now, they only had to guard themselves when they were in the Chatzer, now they need to guard themselves when they are in the house too (since from his high window, he can now look into their houses. Alternatively, they can say that from now on, they need to guard themselves even when he is in the house (whereas until now, this was only necessary when he was in the Chatzer).

(a) When a resident opened windows on to the Chatzer, Rebbi Yishmael b'Rebbi Yossi declared that he had a Chazakah - because he holds that silence concerning Hishtamshus (usage) creates an immediate Chazakah.

(b) Rebbi Chiya told the Machzik - that just as he took the trouble to open the window, so he should now take the trouble to seal it, because, in his opinion, this Chazakah too, only takes effect after three years (and in this case, the owner protested within three years).

(c) Rav Nachman says, that if, after three years, Shimon sealed the window that Reuven opened, and Reuven remained silent - Reuven's Chazakah is broken, because, had Shimon granted him the right to open the window, he would have protested immediately when he sealed it.

(a) The problem with our Mishnah, which permits building one room next to the other or an attic on top of his house (despite the fact that his guests enter the Chatzer via his house, and not directly) is - that, when all's said and done, it is the extra building that brings the additional visitors into the Chatzer, so how can the Tana permit it?

(b) To resolve the problem, Rav Huna explains the extra room and the attic to mean - that he divided the existing room into two, either vertically or horizontally (thereby adding nothing to the existing building.

(c) This alleviates the problem - inasmuch as a person can entertain as many guests as he likes in his existing house, no matter how he does it.

Next daf


For further information on
subscriptions, archives and sponsorships,
contact Kollel Iyun Hadaf,