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eBook Tractate Bava Basra I: Commentary and Study Guide
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Publisher:  Varda Books
Original Publisher:  Torah Lishmah Institute
Published:  2009
Language:  English
Pages:   642

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ISBN: 1590459105

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About the Book -- Tractate Bava Basra I: Commentary and Study Guide

The third of the three Talmudic tractates of the order Neziḳin, dealing with man's responsibilities and rights as the owner of property, of a house or field. The tractate is divided into ten chapters, the contents of which may be described as follows: (1) Regulations relating to property held by more than one owner (ch. i.); (2) responsibilities of an owner of property with regard to that of his neighbor (ch. ii.); (3) established rights of ownership and rights connected with property (ch. iii.); (4) laws referring to the acquisition of property by purchase (ch. iv.-vii.); (5) laws of inheritance (ch. viii.-ix.); (6) laws concerning documents (ch. x.).

Despite its seemingly prosaic topics, the Tractate is full of interesting stuff. Louis Ginzberg's "Legends of the Jews" for example, cites it 194 times.

About the Book



An Excerpt from the Book -- Tractate Bava Basra I: Commentary and Study Guide

New Page 48

Mishna [1] a.

Partners who share a common courtyard and have agreed to dissolve their partnership (see [4] for alternate interpretation) must build a wall along the line which equally divides the yard. b. In a community in which the custom is to build the wall with a particular material, such as rough stones, smoothed stones, bricks or half-bricks (ןיסיפכ), the partners should build the wall using this material. c. The custom of the locality should be followed. d. When using rough stones, each partner must relinquish 3 tefachim from his side to accommodate the wall; for smooth stones each must relinquish 2-1/2 tefachim; for bricks each must give 2 tefachim and

Re [1a]: Partners Tosefos/Ri: The Tractate begins with the laws of partnership because the last mishnayos of the previous tractate, Bava Metzi'ah, deal similarly with partnerships.

Rashi: [la] speaks of householders who share a common front yard. In Talmudic times, it was customary for several houses to share a common yard. Most household chores were performed in the yard. In this case, the householders decide that they wish to divide the yard so that each has exclusive use of his portion.

Re: In a yard

Rashba: Why must the case of a yard be singled out? 1. So as to distinguish its status from that of a garden or valley which is to be divided. 2. For those who consider visual trespass to be a tort, [la] serves to teach that visual trespass applies to a yard. 3. For those who do not consider visual trespass in a yard to be a tort, singling out a yard in [la] indicates that visual trespass in homes is considered a tort. While this point is made explicitly in III-[114], the tanna cannot rely on the reader's being aware of that Mishna at this point.

R. Yona: 1. [la] speaks of a community where no customs have been established with regard to whether a wall should be built by partners when they dissolve their partnership, [la] teaches that notwithstanding, one partner can force the other to have a wall built so as to prevent visual trespass. [This is according to the conclusion that visual trespass is a tort.] 2. In locales where it is the custom not to build walls because there is common consent not to be concerned about visual trespass, one party cannot force the other to build a common wall. However, should one party desire privacy, he may build a wall within the boundaries of his own property. This law derives from that concerning a garden in communities where it is not customary to build walls. [This is so even though gardens located in areas in which there is no established custom require that a wall be built between them.] 3. Even in communities without established rules, one party cannot force the other to accept a wall of palm and laurel. Rather, the wall must be built with one of the materials mentioned in the Mishna. (This ruling is derived as follows: The G'mara deduces from the Mishna that it is permissible to use palm and laurel dividers where this is the established custom. Thus, it follows that in places where no custom exists, dividers made of these materials are unacceptable.)

Re [lb-d]: The amount of land each must give up and the prevailing custom

Tosefos: 1. Given that the Mishna states that the prevailing custom need be heeded, what is the point of enumerating the amount of land to be given up for each type of fence? Answer: In case the custom is to give up more land than stipulated in the Mishna, the law does not require that it is necessary to comply with the custom. However, if the custom is to give up less land than stipulated in the Mishna, by law, each party must give up the amount of land stipulated. 2. Why need the G'mara explain that the phrase, "one is to follow local custom" teaches that one may construct a partition from palm fronds and laurel branches, instead of simply saying that it teaches that one may truly follow a prevailing custom? R. Tam: The G'mara wishes to emphasize that not all local customs are legally binding or acceptable. Thus, where it is customary to use palm fronds and laurel branches for a fence, this is acceptable. Anything more flimsy is not acceptable and is considered "the custom of pedestrians."

Ramban: 1. I disagree with R. Tam. "One must follow local custom" is not stated so as to delimit the material used in the wall. Rather, it serves to rules guiding the material to be used for the wall are only applicable when the wall is built by both. (This is in opposition to Rashba's view cited above.) [No mention is made of what type material is to be used by a householder whose roof overlooks a yard. In the case regarding houses on two sides of a public domain, while the G'mara discusses a case of a stone wall, in that case, the owners built the wall of stone for convenience and not to satisfy halakhic requirements.]

Rashba: 1. There are those who maintain that where there is no custom to have walls between yards, one partner may not force another to build a wall. This is based on the fact that one may not force a fence to be built in a garden wherein, all agree that visual trespass is a tort in communities in which this is not customary. Thus, as visual trespass is more of a tort in a garden than in a yard, it is certainly the case that one cannot force a wall to be built in the yard. 2. I [Rashba] disagree. It is only those who do not consider visual trespass in a yard to be a tort who consider visual trespass in a garden to a greater concern. Those who consider visual trespass in a yard to be a tort, consider the trespass in the yard to be more serious than in a garden. Thus, according to R. Tam (see above), should the prevailing custom be that inferior material is used to divide the yards, one partner can compel the other to construct a wall using acceptable material. It follows that where it is customary to not separate the yard with a wall, one partner can compel the other to build a wall. Should one wish to argue that R. Tam's case is different because it speaks about a place where in principle it was customary to build a fence but that only one party did not wish to subject himself to privacy invasion when the fence fell down, I see no difference. In that community, it had already become commonplace for people to forfeit their right to privacy during the periods the wall was down. Thus, we see that even when people in the community generally forfeit their rights, a given individual may stand firm and not forfeit his rights. Moreover, the Jerusalem Talmud requires a wall to be built in a garden even when this is not the prevailing custom. (When the G'mara says that in a garden the common custom is to build a fence, this should not be taken to mean that in places where this is not the prevailing custom, a fence need not be built. Rather, this statement is meant to differentiate gardens from fields. In the latter case, the assumption is that no walls are built and that one party cannot force the other to build a wall.)

Yad Ramah: Even should the prevailing custom when building new yards be to separate them with walls made of rough stones, if the custom for dividing yards after dissolved partnerships is to use half bricks, this is what is to be used.

Tur (157:3): 1. Some say that one may be forced to put up a wall only where this is the local custom. Beis Yosef: The Mishna speaks of a new city. (See Rashba above.)

2. Rosh: Even if the local custom does not require a wall, the halakha insists on a wall being put into place. [This is because there is significant damage done through visual trespass when no wall is built.] Rama (157:4): If there is no custom in the city, the wall to be constructed must be approved by the court. K'tzos haChoshen: Rama derives this from Nimukei Yosef. The latter explains that where the wall is built from plaster, it is up to the judges to decide on its specifications. The only reason to keep the measurements mentioned in the Mishna is because these measurements are synonymous with local custom. That neither Rambam nor Shulchan Arukh list the Mishna's measurement is a sign that in places where there is no custom, one may be guided by the decision of the judges.

Re [1e]: Because of this, should the wall collapse

Tosefos: 1. [le] speaks of where the wall was built solely because of the halakhic imperative and not because the partners agreed to build the wall. According to the view that visual trespass in a yard is not a tort, it speaks of where it is remembered that the parties had made a formal agreement through a kinyan. According to the view that visual trespass is considered a tort, the ruling is based on the fact that the law requires that both parties share in the building of the wall. 2. From (1) it seems that the only grounds for dividing the stones is that it is known that both parties built the wall. Why is this reason necessary? Given that there is no sign on the wall as to whom it belongs, neither is a קזחומ. Thus, even while the wall was standing neither could claim exclusive rights to it. Even Rabbanan, who generally argue with Sumkhus and maintain that one who wishes to extract property from a possessor must bring proof, agree in this case that because neither party is in possession of the wall before it falls, even should it fall into the domain of one of them, the stones need be divided between the two parties! (רבג םילאד לכ is also not a remedy because in this case the court was doubtful about the status of the stones even prior to the litigants claims.[אנוממד אררד].) Answer: Ri: This question is precisely the one asked by the G'mara when it says, "This is obvious!" To this question, the G'mara responds that [le] teaches that even when the bricks remain in X's yard for a very long time beyond that which partners would normally allow X is not believed if he claims that he bought the bricks from Y, but each divides the bricks evenly. Why is this? Because "we are witnesses" to the fact that the wall was constructed by them both. 3. In a valley, should the stones remain in the property of one of the parties for a long time, he is believed if he claims he bought them. 4. Under all circumstances, the land on which the wall stands is to be divided between the parties. This is obvious! It is mentioned by the Mishna only because it had to explain the status of the stones.

Ramban: 1. [la] speaks of a yard which is too small to force a division. Thus, the division takes place because there is a mutual agreement between the parties. Therefore, even should there be a sign on one side of the wall, the two parties still split the stones. This is based on the argument that since X could force Y to build the wall, X did not build it on his own. 3. Given that the wall need only be 4 amos high, is one party believed that the wall above 4 amos was built completely by him given that he has a sign to indicate that it is his? No! Since the underlying ground is owned jointly, both parties are considered to be equal partners in the wall. Thus the party which claims exclusivity must bring proof that the upper part of the wall is completely his. Moreover, a sign is not useful in proving that part of the height of a wall belongs to an individual since the bottom half of the wall definitely belongs to both of them. 5. Some maintain (Tosefos) that the rule in [le] applies only when there are witnesses to the fact that through a kinyan the parties agreed to build a common wall. If not, one of the parties is believed to say that he built the wall solely on his property. This is not true. Given that the partnership could not be dissolved without the assent of both parties since, as explained, the yard is too small to force a division and each of the parties could force the other to build the wall, it is assumed that both built the wall.

Yad Ramah: 1. "Therefore" is needed for the case in which one of the partners claims that the wall was placed equally on both partners' properties and the other claims that the wall was placed only on his own property. Lest it be argued that this is similar to the case in which X claims that a particular garment is completely his and Y claims that he is an equal co-owner of that garment, and therefore one should receive 1/4 and the other 3/4, because that portion of the land which they agree on is not in contention, the Mishna states that Y's plea is not to be considered as an admission but as a statement which, in fact, serves to elevate his claim. The land is divided because ultimately each party could force the building of the wall. Moreover, even should it be known that one party actually built the wall, the stones and land are divided evenly because we assume that the other party eventually paid his share of the costs. 2. It turns out that the law remains the same whether or not it was known that X and Y were partners, and whether the yard was large enough to force a division or whether the partners had decided to build a wall. So long as it is not known explicitly that one partner built the wall on his own in his own yard, the assumption is that the wall was built in partnership on both of their portions. This is because we follow the present status (אתשהד הקזח). Should the partners go to court at this point, the court would assume that the yard was divided evenly between them and both would share in building the wall on their common property line. 3. Where it is known that one party built the wall, the status of the wall and property depends on the following: Should the yard have been large enough for one party to force a division, then the assumption is that the wall was built communally and on common property even should it be known that the other partner had publicly refused to pay for the wall, it is assumed that he eventually did pay for the wall. However, in the case where the yard is too small to force a division, and it is unknown whether a formal partnership dissolution took place, the assumption, given the circumstances, is that one party did build the wall on his portion [if this is his claim]. (This is different from the case of a wall that fell [23]. There, we do not know who built the first wall, and assume that the partners followed the law and shared in its building. In this case, however, the only knowledge for the dissolution of the partnership is the existence of the wall. Thus, the one party who is known to have built the wall is believed when he says the wall was built by him and on his property.) 4. Where it is known that the wall was built on one of the partner's land the assumption is that he alone paid for the wall.

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