Bava Batra 2a (ב.) — the Talmud in English

Introduction to the Chapter of The Partners Visual damage - Its explanation It is forbidden for a person to look into his fellow’s house , because one who looks causes his fellow hezek re’iyah, visual damage. The source of this prohibition is derived from a verse, for we find in Bilaam’s prophecy, when he came to praise Israel: “And he saw Israel dwelling according to its tribes” — What did he see? He saw that their entrances did not face one another. He said: These people are worthy of having the Divine Presence rest upon them. The reason for this law is either that through his sight a person can harm his fellow through the evil eye, or because of modesty, or because of lashon hara. Therefore, a person is obligated to build a partition so that he will not see into his fellow’s property, as will be explained below. The Gemara records a dispute concerning this type of damage. Some maintain that visual damage is indeed considered damage. Others maintain that visual damage is not considered damage. However, even those who maintain that visual damage is not considered damage are speaking only of one who looks into his fellow’s courtyard. One who looks into his fellow’s house is considered a damager, because visual damage involving a house is more serious than visual damage involving a courtyard, since a person engages in private activities in his house. The halakha was ruled in accordance with the view that visual damage is considered damage even in a courtyard. Visual damage - The basis of the law According to the straightforward understanding of the matter, the basis of visual damage is the law of distancing damages. That is, just as a person is forbidden to place in his courtyard something that damages his fellow’s courtyard, as will be explained below in the second chapter—for although he places the “damaging object” in his own domain, it is nevertheless forbidden, because through this act he damages his fellow—so too, a person is forbidden to stand in his own domain and damage his fellow through his sight in his fellow’s courtyard. Therefore, he is obligated to build a partition so that he will not look into his fellow’s courtyard. However, it should be added that regarding the fundamental issue of distancing damages, Rabbi Yosei and the Rabbis disputed the matter. According to Rabbi Yosei, the damager need not distance himself, unless he damages through girei deileih, “his arrows”—that is, when the damage is created immediately upon placing the damaging object, like a person who shoots an arrow that causes damage immediately. But if the damage is created only after some time, he is permitted to place the damaging object in his domain, and the damaged party must distance himself. Accordingly, the Rishonim wrote, that visual damage is also considered girei deileih, since as soon as a person looks into his fellow’s courtyard, his fellow is damaged at that very moment. Therefore, even Rabbi Yosei, who maintains that with regard to distancing damages the damaged party must distance himself, concedes in the case of visual damage that the damager must distance himself, just as Rabbi Yosei concedes with regard to damages defined as girei deileih. It can be learned from the words of the Rishonim that the basis of visual damage is the law of distancing damages, since the Rishonim compared visual damage to the laws of distancing damages. But see below, where we will explain that from the words of the Rosh it is evident that visual damage is not analogous to the laws of distancing damages. A further explanation of visual damage Even HaEzel presented an additional approach to explaining the nature of visual damage: the damage is not the fact that a person looks into his fellow’s house [because if that were the reason, they would not obligate him to build a partition, since he could guard himself so as not to cause damage ], but rather the essential damage consists in preventing his fellow from using the courtyard for private activities, out of concern that the other person will see him. This prevention of use is itself the damage. Although prevention of use is merely damage caused indirectly, even indirect causation of damage is only exempt from payment for the damage; it is nevertheless forbidden to cause it. The obligation to build a wall and its definition When two courtyards are adjacent to one another, if it is possible to see from one courtyard into the other, the owners of the courtyards are obligated to build a partition between them, as explained in the Mishna. The purpose of this wall is to prevent visual damage. The height of the wall, its location, and the materials from which it is built are explained in the Mishna and the Gemara. The Rishonim disputed the nature of this obligation. The view of Ramban is, that the basis of the obligation to build the wall is an obligation imposed upon the damager, so that he will avoid the prohibition against visual damage. Since a person cannot be careful and stand with his eyes closed all day, he is therefore obligated to build a wall to prevent causing damage to his fellow. The later authorities explained that it is evident from Ramban’s words that the obligation to build the wall is not an enactment of the Sages. Rather, it is a fundamental legal obligation imposed upon the damager, so that he will avoid the prohibition against visual damage. But the view of the Rosh is, that the obligation to build the wall is not because of the prohibition against visual damage. Rather, “there is a monetary obligation between them, whereby each one becomes obligated to his fellow to assist him in building the wall.” Some have explained that the Rosh maintains that because of the prohibition itself against visual damage, he is not obligated to build a wall [for the reason that will be explained below]. Rather, the Sages enacted and imposed upon them a monetary obligation to build a wall. Although the reason for the Sages’ enactment was visual damage, as explained in the Gemara, nevertheless, it is not the prohibition against visual damage itself that obligates them to build a wall. Rather, the wall is an obligation that the Sages imposed upon them. Waiver of visual damage If one person waived his claim to visual damage against his fellow, the Rishonim disputed whether this waiver is effective. Ramban’s view is, that the waiver is not effective. A waiver is effective only with regard to something that a person is obligated to provide his fellow. But here, he is not obligated to build a wall for his fellow; rather, the obligation is imposed upon the damager so that he will avoid the prohibition against visual damage. If so, how can his fellow’s waiver regarding the construction of the wall exempt him from the obligation imposed upon him to avoid the prohibition? Surely a waiver cannot nullify the prohibition. But the view of the Rosh is that if one person waived his claim to visual damage against his fellow, his fellow is no longer obligated to build a partition. This is consistent with the view of the Rosh cited above, that the basis of the obligation to build the partition is a monetary obligation that one person owes his fellow. Once his fellow has waived the monetary obligation that he has against him, he is no longer obligated to build a partition. It is evident from the words of the Rosh that there is no additional reason obligating the construction of a partition beyond the monetary obligation imposed upon them by the enactment of the Sages to build a wall. There is no obligation to build a wall because of the prohibition against visual damage, since if that were the case, what would the waiver accomplish? Even after he waived his claim, the other would still be obligated to build a partition because of the prohibition resting upon him, and the waiver would not be effective to nullify that prohibition. It is necessarily the case that the prohibition itself does not obligate him to build the wall. But one may raise the following difficulty: Why indeed is there no obligation of distancing damages here? The Gaon Rabbi Shimon Shkop explained that the law of distancing damages does not apply to visual damage at all. Although a person is forbidden to damage his fellow from within his own domain, this applies only to the types of damagers listed in the chapter “One May Not Dig” and those similar to them. For example, a person is forbidden to dig a pit in his own domain if this digging damages his fellow’s pit. Although he performs the damaging act in his own domain, it is nevertheless forbidden because this act causes damage to something located in his fellow’s courtyard. Therefore, he is not considered to be “acting within his own property”; rather, he is considered to be “acting within his fellow’s property.” But visual damage does not affect anything within his fellow’s property. Rather, through looking into his fellow’s domain, his fellow is harmed, but there is no tangible effect within his fellow’s courtyard. A person is not prohibited from doing something in his own domain even if, as a result, his fellow is harmed [and only if what he does in his own domain affects what is within his fellow’s domain is it forbidden, because it is then no longer considered “acting within his own property,” as stated above]. Therefore, his fellow cannot demand that he remove the visual damage he causes him, and he is not obligated to build a partition. Cases in which all agree that visual damage is considered damage We have already cited above the view that visual damage is not considered damage. It was explained above that this view applies only to visual damage involving a courtyard. But looking into a house is considered visual damage according to all opinions. There are additional cases in which all agree that visual damage is considered damage; we will mention several of them. a. If there was a partition between them and it fell, according to all opinions they are obligated to rebuild the partition, because of visual damage. b. In a place where there is visual damage caused by passersby in the public domain, all agree that this visual damage is considered damage, because it is damage caused by the public. c. In a garden, all agree that visual damage is considered damage, since a person is forbidden to stand in his fellow’s field when it is filled with standing crops, so that he will not harm him through the evil eye. But Rambam’s view is, that there is no visual damage at all in a garden. In a courtyard, a person stands and attends to his needs, and it is a place where people live; therefore, visual damage applies there. But people do not generally live in a garden, and therefore visual damage does not apply there. And what they said in the Gemara, “It is forbidden for a person to stand in his fellow’s field when it is filled with standing crops,” is merely an act of piety. Introduction to the First Mishna The first Mishna explains how a shared area is divided, by means of a partition, between two neighbors—for example, a residential courtyard jointly owned by two residents, with each resident living in a separate dwelling whose entrance opens onto the courtyard between them. The Mishna explains that the local custom governing the construction of a partition between two partners in a jointly owned residential courtyard determines the matter according to Torah law! The Gemara presents two approaches to how the obligation to construct the partition discussed in the Mishna arises. According to each approach, the Mishna comes to reject the other approach. The basis of the distinction between the two approaches is the question of whether visual damage is considered damage or not. That is, is the infringement of a person’s privacy, when he is visible in his own domain to other people, considered damage, such that the damaged party can demand that his neighbor, who damages him through his sight, participate with him in removing the damage by constructing a partition between them, in order to allow him to conduct himself privately? Or is visual damage not considered damage, and does he have no right to make a claim that will protect his privacy in his property? According to one opinion, visual damage is not considered damage. According to this opinion, our Mishna teaches that the obligation to construct a partition between partners arises only because the two neighboring partners agreed to obligate themselves, through a kinyan they made between them, to construct the partition. Only then are they obligated to fulfill the agreement to which they committed themselves, by virtue of the kinyan, in accordance with local custom. According to the second opinion, visual damage is indeed considered damage. According to this opinion, our Mishna teaches that the local custom governing the construction of the partition obligates the partners, by Torah law, to construct such a partition in accordance with local custom, in order to prevent visual damage. But the damaged party cannot demand the construction of a partition in every circumstance in order to avoid being harmed by visual damage. Rather, there is a condition for division: the area being divided must be of sufficient size for division. That is, after the courtyard is divided, each of the partners must be left with at least an area of four cubits by four cubits, which is an area suitable for use. But if the division would leave an area smaller than this, the division is not compelled, so as not to impair each partner’s ability to use the courtyard fully. Therefore, where the courtyard is not large enough for division, but the partners agreed among themselves to divide it willingly, our Mishna teaches that the wall must be constructed in the middle, in a manner that will thereby prevent visual damage, and not as a partition made with numerous openings. MISHNA:

The partners,

two neighbors who have a courtyard in partnership, with both of their houses opening onto it,

who wished to make a partition

between them

in the courtyard

they share,

build

together

the wall,

in the middle

of the courtyard. One gives from his portion half the space needed for the thickness of the wall, and the other gives half.

The place

where the people customarily

build

the partition between them

with

stones of

uncut stone,

or

hewn stone,

or

half-bricks,

or

bricks—

they build

the same way,

everything

according to the custom of the country

in which they are located.

And one partner cannot say, “I wish to build only with hewn stone,” or, “I wish to build only with half-bricks,” in a place where that is not the custom.

If they build with

uncut stone,

the wall must be built six handbreadths wide; therefore,

this one contributes three handbreadths

of his area,

and this one contributes three handbreadths

of his area. This is sufficient, and there is no obligation to build a wall of uncut stones wider than six handbreadths.

And if they build a wall

with hewn stone,

the wall must be built five handbreadths wide; therefore,

this one contributes two and a half handbreadths, and this one contributes two and a half handbreadths.

With half-bricks—

this one contributes two handbreadths, and this one contributes two handbreadths.

With bricks—

this one contributes one and a half handbreadths, and this one contributes one and a half handbreadths.

Therefore,

since at the beginning of the construction of the wall the Sages obligated both of them to build it,

if the wall falls

after many years, and it is unknown who built it and to whom the area on which the wall had stood belonged, one cannot say: The entire wall was built on my portion, and the stones belonged to me. This is so even if he is in possession of them, for example, if the stones fell onto his portion. Rather,

the area and the stones

are

the property of both of them.

Likewise,

the law

in an ordinary vegetable garden

where various vegetables are grown, if the garden was jointly owned by two people, it is considered

a place where it is customary to erect a fence

in the middle, between the two partners. Therefore,

they compel him,

each of the partners, to erect a fence in the middle, ten handbreadths high.

But in a valley,

a grain field, that is jointly owned by two people, it is considered

a place where it is customary not to erect a fence ,

and therefore

they do not compel him

to erect one.

Rather, if one of them wishes

to erect a fence,

he sets

the location of the wall

within his own property and builds

the entire wall solely on his own area.

And he makes

a

front projection

as a sign indicating that the wall is his

on the outside.

Therefore,

since he made it alone and on his own property,

if the wall falls

after some time,

the area and the stones belong to him.

But

if they made

the wall

with the consent of both of them,

then

they build the wall in the middle and make

a sign of

a “front projection” on both sides,

to indicate that both of them made it together, and that each of them contributed half the area comprising the thickness of the wall.

Therefore,

where a sign of a “front projection” is visible in both directions,

if the wall falls—

the area and the stones belong to both of them.

Gemara:

They assumed,

the members of the academy who transmitted our Mishna, in order to interpret it,

what

is the meaning of the Mishna’s statement: The partners who wished to make

“a partition”?—

that the partners wished to make

a wall,

a wall.

That is, the partners wished to build a wall so that there would be a partition between them.

Accordingly, the Mishna does not mean that the partners wished to divide the courtyard, with “partition” meaning the division of the courtyard into two; for that is not the matter under discussion in the Mishna!

And similarly we find in a beraita, concerning diverse kinds, that “partition” means a separating fence, and not a division into two:

As it was taught in a beraita: A partition of a vineyard

of grapevines that is adjacent to the grain field of another person—and as long as the partition exists, the owner of the vineyard and the owner of the grain may place the grapevines on this side and the grain on that side, up to the partition itself, without concern for the prohibition of diverse kinds, since the partition separates them, even though their roots beneath the partition are close to one another. The reason is that it is not the intermingling of the roots that is prohibited as diverse kinds, but rather their growth in a single field. The partition separates them into two fields. And if it happens

that it is breached

the partition of the vineyard, and from then on the grain and grapevines continue to grow side by side without sufficient distance between them, they become prohibited as diverse kinds. Since the owner of the vineyard is considered to be the one causing damage to his fellow’s grain, because the partition of his vineyard was breached,

the owner of the field says to him,

the owner of the field, the injured party, to the owner of the vineyard, the one causing the damage:

Fence

the breach in the fence of your vineyard, so that your grapevines will not render my grain prohibited.

And even if the owner of the vineyard fenced the place of the breach, and

it was breached again

the partition, once again

the owner of the field says to him,

the owner of the field to the owner of the vineyard:

Fence

your vineyard!