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Bava Metzia, 117

BAVA METZIA 116-117 - anonymously dedicated by an Ohev Torah and Marbitz Torah in Ramat Beit Shemesh, Israel.


OPINIONS: Rav Ashi teaches that even according to Rebbi Yosi, who maintains that when one places a harmful object next to his neighbor's property, it is the neighbor's obligation to protect himself, one may not place a harmful object that causes damage in the manner of "Girei Dilei."

The Halachah follows the opinion of Rebbi Yosi (as the RIF and ROSH write based on the Gemara in Bava Basra 25b), that one is not obligated to distance his harmful objects from his neighbor's border unless the objects harm in such a way that they are considered "Girei Dilei" ("his arrows," or damage caused directly by his act of placing the harmful object there). What defines an object as "Girei Dilei," thus prohibiting the owner from placing it within a certain range of his neighbor's property?

(a) RASHI in Bava Basra (22b, DH b'Girei) writes that "Girei" is defined as any damage which comes directly from the hands of the Mazik. In the case of our Gemara, if the water which was spilled flows directly down to the property of the lower neighbor without stopping, then it is considered the "Girei," arrows, of the upstairs neighbor, since it came directly from his hands. If it stopped before dripping down it no longer is considered to be coming directly from the Mazik's' hands and it is not "Girei."

(b) The RI MI'GASH in Bava Basra (22b) and the ME'IRI here define "Girei" as damage which incurs immediately upon placing the harmful object in its place. If there is a delay between the time that the object is placed there and the time that the damage occurs, it is not considered "Girei." In the case of our Gemara, if the water drips down without stopping, then the damage is considered to be immediate and it is "Girei Dilei," but if it stops on route (for example, it becomes absorbed in the ceiling beam, and afterwards it drips down), the damage is not considered to be occurring immediately and thus it is not considered "Girei."

(c) The RAMBAN in Bava Basra (22b, DH Leima) defines "Girei" as damage which comes directly from the location at which the object was placed, even if the damage does not occur immediately when the object is placed there.

(d) A fourth opinion is that of RABEINU YONAH (Bava Basra 18b). In order for damage to be considered the "arrows" of the Mazik, the damage must occur immediately at the time that he places the object down, *and* it must come directly from the location where the object was placed. Rabeinu Yonah requires both of the above conditions (that of the Ramban and that of the Ri mi'Gash) in order for the damage to be considered "Girei Dilei."

HALACHAH: The REMA (CM 155:33) cites the opinion of the Ri mi'Gash. (Y. Marcus)
QUESTION: The Mishnah teaches that when the owner of the second floor requests from the owner of the ground floor to rebuild his house and he refuses, the second-floor owner is entitled to rebuild the ground floor himself and live in it until the ground-floor owner reimburses him.

Why is the second-floor owner obligated to get involved in such a complex procedure? Why can he not simply request Beis Din to force the ground-floor owner to either rebuild or to force him to pay the funds for rebuilding? Why is this case different from any normal case in which a person who is obligated to pay refuses to pay, in which Beis Din forcefully extracts from him the payment? (RAMBAN)

ANSWER: The Ramban cites the Yerushalmi which asks that there seem to be two contradicting Beraisos. One Beraisa says that we force the ground-floor owner to rebuild, while another Beraisa says that we do not force him to rebuild. The Yerushalmi answers that if the ground-floor owner is present then we force him to rebuild (or to pay), but if he is not present (for example, he left the country), then we do forcefully collect the funds from his property.

Our Mishnah, too, explains the Ramban, is referring to a case in which the ground-floor owner has left the country and it is not possible to collect from him.

Why, though, may Beis Din not collect from his property even if he is not present? The Gemara in Kesuvos (88a) cites Rav Nachman who says that when a debtor has left the country and gone abroad, Beis Din may collect the debt from his property in his absence. Why, then, in the case of our Mishnah does Beis Din not do so?

The TOSFOS YOM TOV here offers two answers. First, he says that the obligation of a ground-floor owner to a second-floor owner is not the same obligation as a borrower's obligation to a lender. In the case of the house that collapsed, the obligation of the ground floor to support the second floor is an obligation on the *house* itself and not on the owner. That is, as long as the ground floor exists, then it is Meshu'abad, so to speak, to support the second floor. When the ground floor no longer exists (it collapsed), the *owner* has no obligation to rebuild it in order to support the second floor. This is the answer of the RASHBA.

The Tosfos Yom Tov offers an alternative answer. Rav Nachman in Kesuvos only allows Beis Din to collect a debt in the absence of the debtor in the case of a person who borrowed money. The Chachamim instituted that Beis Din may collect in his absence in a case of a loan in order for lenders not to be reluctant to lend money. In any other form of debt, though, the Chachamim did not institute that Beis Din may collect in the absence of the debtor. (Y. Marcus)


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