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prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem

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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.



(a) Rebbi Aba bar Mamal asks whether, in our Mishnah, when Reuven moves downstairs, Shimon is obligated to move out, because to begin with, he rented Shimon a single apartment, or whether he may remain there. The reason for the second side of the She'eilah is - because it is obvious that he did not rent out an apartment for him to have to be forced out of his own house.

(b) Assuming that we rule like the second side of the previous She'eilah - he then asks whether Reuven is permitted to enter through the front door, or whether he is obligated to enter via the roofs and then to descend into the apartment.

(c) Reuven might be permitted to use the front door, despite the fact that initially, he entered the attic via the rooftops - because initially, he only needed to climb up the ladder to get to his attic, whereas now, he has to ascend via the ladder and descend again via the house.

(d) Assuming that the second side of the previous She'eilah is indeed Halachah, we then ask - whether, if Reuven rented the middle floor of a three-storey building and his apartment becomes uninhabitable, he is obligated to accept the top floor as alternative accommodation (seeing as he accepted an upper floor apartment), or whether he can opt to move downstairs, since he only accepted a first-floor apartment, and not one on the second-floor (see also Tosfos DH 'Ifchis'). The outcome of this She'eilah is 'Teiku'.

(a) Rebbi Yossi obligates the owner to repair the floor of the attic. According to Rebbi Yossi b'Rebbi Chanina, this constitutes poles and rush-mats. S'tini Amar Resh Lakish says - boards.

(b) They do not in fact, argue - each one prescribes what was customarily used in his town.

(a) When the cement of the floor of Reuven's attic cracked, it created the problem - that whenever he washed himself, the water would seep through his floor into Shimon's apartment, causing damage.

(b) According to Rebbi Chiya bar Aba, the onus to repair the floor lay on Reuven; Rebbi Ila'i in the name of Rebbi Chiya bar Yosef maintained that if Shimon wanted to avoid the damage, then he would have effect the repairs himself.

(c) We cite the Pasuk "ve'Yosef *Hurad* Mitzrayim" - to help us remember that the latter, whose name contained "Yosef" was the one who placed the onus on Shimon, who lived *below*, to effect the repairs.

(a) We already discussed the Mishnah in Bava Basra. The Tana Kama there rules that if Reuven's tree is growing within twenty-five Amos of Shimon's pit (fifty Amos if it a carob or a Shikmah tree), then assuming that ...
1. ... the pit was there first - Reuven is obligated to chop down his tree, though Reuven will have to compensate him for his loss.
2. ... tree was there first - the tree may remain standing.
3. ... it is a Safek - the tree may remain standing, too.
(b) The Tana does not make an allowance for a tree that is much lower down on the slope of a mountain than the pit - because the roots will still weaken the soil underneath the pit and cause the walls to cave in.

(c) Rebbi Yossi - places the onus of moving upon the Nizak, in which case Reuven is never obligated to chop down his tree.

(a) Rebbi Yossi and the Tana Kama in our Mishnah cannot possibly be following their reasoning there - because then they would in fact, be reversing their respective opinions (since in our Mishnah, the Tana Kama places the onus of repairing the roof on the person living below (*the Nizak*, if the basis of their Machlokes is the same as that in Bava Basra), whereas in Bava Basra, he obligates *the Mazik* to move (and Rebbi Yossi, the opposite).

(b) The basic difference between the case in our Mishnah and the case in Bava Basra (based on the fact that whereas the latter is speaking about two owners, our Mishnah is speaking about a Socher and a Maskir) is - the fact that whereas there, the Socher is claiming his rights, there, the Nizak is claiming damages.

(c) The basis of the Machlokes Rebbi Yossi and the Tana Kama in our Mishnah is - whether cementing the roof is considered reinforcing the ceiling of the man who lives below (the Rabbanan), or straightening the floor of the person living above (Rebbi Yossi).

(d) And we establish the Machlokes between Rebbi Chiya bar Aba and Rebbi Chiya bar Yosef - like that of Rebbi Yossi and the Rabanan in Bava Basra (Rebbi Chiya bar Aba holds like the Rabbanan ('al ha'Mazik Le'harchik'), and Rebbi Chiya bar Yosef, like Rebbi Yossi ('al ha'Mazik La'harchik').

(a) We ask on the above comparison of the Machlokes Amora'im (in the case of the water) to the Machlokes Tana'im however, from Rav Ashi, who quoted Rav Kahana as saying - that even Rebbi Yossi concedes that when it is 'Giyri Dileih' (meaning that as long as the Mazik or his 'arrows' are damaging the Nizak directly), then the onus of moving lies with him.

(b) We initially consider our case to be one of 'Giyri Dileih' - because the water falling on to Shimon below is like his arrows.

(c) We answer however - by establishing the case when the area where Reuven washed was not directly above the spot where the water fell on to Shimon, but that it first flowed to another point from where it fell on to Shimon (and that is not 'Giyri Dileih', but 'G'rama').

(a) In a case where Reuven and Shimon share a house, and where Reuven lives in the attic and Shimon downstairs, if the house caves in and Shimon refuses to rebuild his floor - the Tana Kama permits Reuven to build the ground floor and to live there without paying rent, until such time as Shimon reimburses him.

(b) Rebbi Yehudah objects to the Tana Kama's ruling - on the grounds that since Reuven benefits by living in Shimon's house without rent, even though Shimon (who did not intend to build anyway) loses nothing, he is obligated to pay rent ('Zeh Neheneh ve'Zeh Lo Chaser, Chayav'). Consequently, should he fail to pay, it looks like Ribis on the money that Shimon owes him.

(c) According to Rebbi Yehudah, Reuven will therefore have to build the attic too, before moving into the downstairs apartment. Then there will be no problem with Ribis, seeing as the attic is available to him, and he gains nothing by taking up his quarters downstairs.




(a) According to Rebbi Yochanan, our Mishnah is one of three places where Rebbi Yehudah forbids Reuven to benefit from Shimon's property without his consent. The first case is - that of our Mishnah ('Zeh Neheneh, ve'Zeh Lo Chaser, Chayav'), as we just explained.

(b) If Reuven gave Shimon wool to dye red and he dyed it black or vice-versa, Rebbi Meir, in the Mishnah in Bava Kama, rules 'Nosen Lo D'mei Tzimro' - because he holds 'Shinuy Koneh' (he acquired the object and became obligated to pay for it).

(c) According to Rebbi Yehudah, the owner pays the dyer the least of the Sh'vach and the expenses (and is not allowed to obtain the full benefit from the owner's wool without his authority).

(d) The third case is a Mishnah in Bava Basra, where Reuven, after receiving half his debt from Shimon, hands the Sh'tar to a third person, whom Shimon instructs, that in the event that he fails to pay the balance by a certain time, he should return the Sh'tar to Reuven. Rebbi Yossi rules there 'Yiten'. Rebbi Yehudah rules - 'Lo Yiten' (preventing the creditor from benefiting from the debtor's property without his express consent).

(a) However, we query Rebbi Yochanan's reasoning in all three cases. Rebbi Yehudah's stringent ruling in the case of ...
1. ... our Mishnah might be - because Reuven can counter that Shimon cannot expect him to pay for the new building whilst he (Shimon) benefits from it, seeing as by the time he moves out, the walls will have become black from the smoke, in which case it is a matter of 'Zeh Neheneh ve'Zeh Chaser'.
2. ... the Mishnah in Bava Kama - because Chazal fined the dyer for changing from the original conditions.
3. ... the Mishnah in Bava Basra - because 'Asmachta Lo Kanya'.
(b) According to this, if Reuven took up residence in Shimon's Chatzer (assuming that Shimon had no intention of renting it out) - Rebbi Yehudah would agree that he would not be obligated to pay Shimon rent, because he too holds 'Zeh Neheneh ve'Zeh Lo Chaser, Patur'.

(c) When we established Rebbi Yehudah's reason in Bava Basra as Asmachta, on the grounds 'that we have heard him say that' - we were not in fact relying on any other source, but that it was more logical to explain his reason there that way (than Rebbi Yochanan's originally supposition that it is because 'Asur le'Adam she'Yeheneh mi'Mamon Chavero').

(a) When he comes to rebuild the ground-floor apartment of the house that collapsed, Rav Acha bar Ada quoting Ula, permits the owner to switch from ...
1. ... G'vil to Gazis, but not vice-versa - because Gazis, which comprises bricks whose edges have not been smoothed, are six Tefachim thick, one Tefach more than G'vil.
2. ... Leveinim to Kefisin, but not vice-versa - because Kefisin, which comprise two half-bricks of one and a half Tefachim thick, plus a Tefach of grit in between (expanding the wall from the three Tefachim thickness of regular bricks to four).
(b) By the same token, he permits him to switch from Shikmim to cedars (because they are stronger) when building the partition between his apartment and that of the first-floor owner's. He also ...
1. ... forbids adding windows, as this weakens the building, but permits diminishing them.
2. ... forbids raising the height of his apartment for the same reason, but permits lowering it.
(c) If both owners are poor and cannot afford to build, and the owner of the ground floor wants to sell the ground, Rebbi Nasan grants him two-thirds of the ground, and the owner of the attic, one third. Acherim (Rebbi Meir) - grants the former three-quarters and the latter, a quarter.

(d) Rabah rules like Rebbi Nasan, because he was a Dayan who gets to the bottom of the Halachah. The reasoning behind Rebbi Nasan's ruling is - that the first floor of the building shortens the life of the building by a third.

(a) In a case of an oil-press in a cave belonging to Reuven above which was a vegetable garden belonging to Shimon, if the ceiling of the cave caved in and Reuven refused to rebuild it - our Mishnah permits Shimon to plant his vegetables in the area of Reuven's oil-press until Reuven has compensated him.

(b) If a wall or a tree falls into the street causing damage, the owner is generally Patur. He will liable - if he exceeds the time-limit that Beis-Din issued him to chop or knock it down.

(c) In a case where Reuven's wall fell onto Shimon's vegetable-garden, and in response to Shimon's request to remove his stones, he replied that Shimon should keep them - Shimon is entitled to refuse.

(d) And if after Shimon accepts Reuven's offer, the latter then offers to pay the former for his expenses and wants his stones back - Shimon is entitled to refuse, too.

12) In a case where ...
1. ... Reuven instructs Shimon his laborer to take the haystack that he built as his wages - Shimon has right to insist that he gets paid in cash.
2. ... after Shimon has accepted Reuven's offer, Reuven offers him his wages instead - he is entitled to refuse.
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