Bava Batra 2a — the Talmud in English

Introduction to the Chapter of The Partners Damage through seeing - Its explanation It is forbidden for a person to look into his fellow’s house , because one who looks causes his fellow damage through seeing. The source of this prohibition is learned from a verse, for we find in Balaam’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 are worthy that the Divine Presence should rest upon them. The reason for this law is either that through his sight a person can harm his fellow with the evil eye, or because of modesty, or because of evil speech. 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. And in the Gemara they disagreed concerning this damage. There are those who hold that damage through seeing is indeed considered damage. But there are those who hold that damage through seeing is not considered damage. However, even those who hold that damage through seeing is not considered damage say this only concerning one who looks into his fellow’s courtyard; but one who looks into his fellow’s house is considered one who causes damage, since damage through seeing in a house is more serious than damage through seeing in a courtyard, because a person performs private acts in his house. The halakha was decided that damage through seeing is considered damage even in a courtyard. Damage through seeing - The foundation of the law According to the simple meaning of the matter, the foundation of damage through seeing is the law of “distancing damages.” That is to say, just as it is forbidden for a person to place in his courtyard something that causes damage to his fellow’s courtyard, as will be explained below in the Second Chapter, for although he places the “harmful object” in his own domain, it is forbidden, since through this act he causes damage to his fellow, so too it is forbidden for a person to stand in his own domain and cause damage through his sight to his fellow in his fellow’s courtyard. And therefore he is obligated to build a partition, so that he will not look into his fellow’s courtyard. But it should be added that concerning the fundamental matter of “distancing damages,” Rabbi Yosei and the Rabbis disagreed about it. According to Rabbi Yosei, the one causing damage need not distance himself, unless he causes damage through girei dehilei, that is, when the damage is created immediately upon placing the harmful object, like a person who shoots an arrow, which causes damage immediately. But if the damage is created only after some time, he is permitted to place the harmful object in his domain, and the one who is harmed must distance himself. And accordingly, the early authorities wrote, that damage through seeing is also considered girei dehilei, since immediately when a person looks into his fellow’s courtyard, at that very moment his fellow is harmed. And therefore even Rabbi Yosei, who holds that regarding distancing damages the one who is harmed must distance himself, concedes concerning damage through seeing that the one causing damage must distance himself, just as Rabbi Yosei concedes regarding damages defined as girei dehilei. And from the words of the early authorities it may be learned that the foundation of “damage through seeing” is the law of distancing damages, for the early authorities compared damage through seeing to the matter of distancing damages. But see below, where we shall explain that from the words of the Rosh it is clear that damage through seeing is not similar to the laws of distancing damages. Another explanation of damage through seeing The Even Ha-Ezel brought an additional possibility in explaining the definition of “damage through seeing”: that the damage is not what the person looks into his fellow’s house [for if that were so, they would not obligate him to make a partition, since he could guard himself so as not to cause damage ], but the essential damage is that he prevents his fellow from using the courtyard for private matters, out of concern that the other will see him. And this prevention of use itself is the damage. And although prevention of use is only damage done indirectly, nevertheless, indirect causation in damages too entails only exemption from payment for the damage, but it is forbidden to do it. The Obligation of a Wall and Its Definition Two courtyards adjacent to one another, if there is a possibility of seeing from one courtyard into the other, obligate the owners of the courtyards to build a partition between them, as explained in the Mishna. The purpose of this wall is to prevent damage through seeing. The height of the wall, its location, and the materials from which it is built are explained in the Mishna and the Gemara. And the early authorities disagreed concerning the definition of this obligation. The opinion of the Ramban is, that the foundation of the obligation to build the wall is an obligation imposed upon the one causing damage, so that he will avoid the prohibition of causing damage through seeing, since a person cannot be careful and stand all day with his eyes closed; and therefore he is obligated to build a wall to prevent causing damage to his fellow. And the later authorities explained that it is demonstrated from the words of the Ramban that the obligation of the wall is not an enactment of the Sages, but is an obligation according to the fundamental law upon the one causing damage, in order to avoid the prohibition of causing damage through seeing. But the opinion of the Rosh is, that the obligation of the wall is not because of the prohibition of damage through seeing, but only that “there is a monetary obligation between them, whereby each became obligated to his fellow to assist him in building the wall.” And some explained, that the Rosh holds that because of the very prohibition of damage through seeing, 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. And although the reason for the enactment of the Sages is damage through seeing, as is explained in the Gemara, nevertheless, it is not the prohibition of damage through seeing that obligates them to build a wall; rather, the wall is an obligation that the Sages imposed upon them. Waiving damage through seeing If one person waived his claim to his fellow concerning damage through seeing, the early authorities disagreed whether this waiver is effective. The opinion of the Ramban is, that the waiver is not effective. For a waiver is effective only regarding something that a person is obligated to his fellow. But here, he is not obligated to make a wall for his fellow; rather, the obligation is imposed upon the one causing damage so that he will avoid the prohibition of damage through seeing, and if so, how can his fellow’s waiver concerning the building of the wall be effective to exempt him from the obligation imposed upon him to avoid the prohibition? Is it not beyond the power of the waiver to remove the prohibition? But the opinion of the Rosh is that if one person waived his claim to his fellow concerning damage through seeing, his fellow is no longer obligated to build a partition, as we brought above the opinion of the Rosh that the foundation of the obligation to build the partition is a monetary obligation that one owes to his fellow; and once his fellow waived his claim concerning the monetary obligation that he has against him, he is no longer obligated to make a partition. And from the words of the Rosh it is clear that there is no additional reason for an obligation to build a partition besides the monetary obligation imposed upon them by the enactment of the Sages to make a wall. And there is no obligation to make a wall because of the prohibition of damage through seeing, for if not, what does the waiver accomplish? After all, although he waived his claim against him, he would still be obligated to build a partition because of the prohibition resting upon him, and the waiver would not be effective to remove this prohibition. It necessarily follows that the prohibition itself does not obligate him to build the wall. But one may ask: Why indeed is there no obligation here of “distancing damages”? And the Gaon Rabbi Shimon Shkop explained that in damage through seeing there is no law of distancing damages at all. And although it is forbidden for a person to cause damage to his fellow from within his own domain, this applies only to the types of harmful objects enumerated in the chapter of “He Must Not Dig” and those similar to them. For example: it is forbidden for a person to dig a pit in his domain if this digging damages his fellow’s pit, and although he performs the act of damage in his own domain, nevertheless it is forbidden to do it, because this act causes damage to something located in his fellow’s courtyard. Therefore, he is not considered one who “acts within his own,” but is considered one who “acts within his fellow’s.” But damage through seeing does not affect anything within his fellow’s property. Rather, by looking into his fellow’s domain, his fellow is harmed by this, but there is no actual effect within his fellow’s courtyard. And there is no prohibition against a person doing something in his own domain even though through this 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 again not considered “acting within his own,” as stated above]. And for this reason, his fellow cannot demand that he remove the damage caused by his seeing, and he is not obligated to build a partition. Cases in which, according to everyone, damage through seeing is considered damage We have already brought above that there are those who hold that damage through seeing is not considered damage. And it was explained above that their words apply only to damage through seeing into a courtyard, but looking into a house is considered damage through seeing according to everyone. And there are additional places where, according to everyone, damage through seeing is considered damage, and we shall mention several of them. A. If there was a partition between them and it fell, according to everyone they are obligated to rebuild the partition, because of damage through seeing. B. In a place where there is damage through seeing from passersby in the public domain, according to everyone this damage through seeing is considered damage, because it is damage caused by the public. C. In a garden, according to everyone damage through seeing is considered damage, because it is forbidden for a person to stand in his fellow’s field when it is standing in its crops, so that he will not harm him with the evil eye. But the opinion of Maimonides is, that in a garden there is no damage through seeing at all. For in a courtyard a person stands and attends to his needs there, and it is a place where people dwell, and therefore there is damage through seeing there. But in a garden it is not the practice of people to dwell, and therefore there is no damage through seeing in a garden. And what they said in the Gemara, “It is forbidden for a person to stand in his fellow’s field when it is standing in its crops,” is only a matter of pious conduct. Introduction to the First Mishna The first Mishna explains how a shared area is divided, by means of a partition, between two neighbors, such as a residential courtyard shared by two residents, where each resident lives in a separate dwelling and his dwelling opens onto the courtyard between them. And the Mishna explains that the custom of the people of the country regarding the establishment of a partition between two partners in a shared residential courtyard is what determines the matter according to Torah law! And in the Gemara two possibilities are brought regarding how the obligation to establish the partition with which the Mishna deals comes into being. According to each possibility, the Mishna comes to state something that rejects the other possibility. The foundation of the distinction between the two possibilities is the question whether “damage through seeing” is considered damage or not. That is to say, whether the infringement of a person’s privacy, in that he is seen in his property by other people, is considered damage, and whether the injured party can demand that his neighbor, who causes him damage through his sight, participate with him in removing the damage by establishing a partition between them, in order to enable him to conduct himself privately. Or whether “damage through seeing” is not considered damage, and he has no right of claim that would protect his privacy in his property. According to one opinion, damage through seeing is not considered damage. And according to this opinion, our Mishna teaches that the obligation to establish a partition between partners exists only because the two partner-neighbors agreed to obligate themselves, through an acquisition that they made between them, to establish the partition between them. And only then are they obligated to fulfill the agreement to which they obligated themselves, by virtue of the acquisition, according to the custom of the country. But according to the second opinion, “damage through seeing” is indeed considered damage. And according to this opinion, our Mishna teaches that the custom of the country concerning the manner of establishing the partition obligates the partners according to Torah law to establish such a partition, in accordance with the custom of the country, in order to prevent damage through seeing. But the injured party cannot in every circumstance demand the establishment of a partition so that he will not be harmed by damage through seeing; rather, there is a condition for division: the area being divided must have “the measure for division.” That is, after the division of the area of the courtyard, at least an area of four cubits by four cubits must remain for each of the partners, which is a place fit for use. But if, as a result of the division, an area smaller than this would remain, the division is not compelled, so that the ability of each of the partners to use the courtyard fully should not be impaired. And therefore, where the courtyard does not have “the measure for division,” but the partners agreed among themselves to divide it willingly, our Mishna teaches that the wall must be established in the middle, in such a manner that it will thereby prevent damage through seeing, and not with a partition made with openings, openings. Mishna:

The partners,

two neighbors who have a courtyard in partnership, and the houses of both of them open into it,

who wished to make a partition

between them

in the courtyard

that they share,

build

it together

the wall,

in the middle

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

A place

where the people were accustomed

to build

the partition between them

with

unhewn stones,

or

or

hewn stones,

or

half-bricks,

or

full bricks—

they build

also in that manner;

everything

according to the custom of the country

in which they are located.

And his fellow cannot say, “I do not wish to build except with hewn stones,” or, “I do not wish to build except with half-bricks,” in a place where this is not the custom.

If they build with

unhewn stones,

the wall must be built six handbreadths wide, and therefore—

this one gives three handbreadths

of its area,

and this one gives three handbreadths

of its area. And this is sufficient; there is no obligation to build a wall of unhewn stones wider than six handbreadths.

And if they build a wall

with hewn stones,

the wall must be built five handbreadths wide, and therefore—

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

With half-bricks—

this one gives two handbreadths, and this one gives two handbreadths.

With full bricks—

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

Therefore,

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

if the wall fell

after many years, and it is not known who built it, nor to whom the place on which the wall had been built belongs, one of them cannot say: The entire wall was built in my portion, and the stones were mine. Even if he is in possession of them, for example, if the stones fell into his portion. Rather,

the place and the stones

are

theirs both.

And likewise

the law

with an ordinary garden,

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

a place where it is customary to fence

in the middle, between the two partners. Therefore,

they compel him,

each of the partners, to fence in the middle, with a fence whose height is ten handbreadths.

But in an open field,

a grain field, shared by two people, it is considered like

a place where it is customary not to fence ,

and therefore

they do not compel him

to fence.

Rather, if one of them wished

to fence,

he brings in

the place of the wall

within his own property, and builds

the entire wall solely on his own area.

And he makes

for himself

a chazית

a sign of recognition that the wall is his

on the outside.

Therefore,

since he made it alone and on his own property,

if the wall fell

after some time,

the place and the stones are his.

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

“chazit” on both sides,

in order to indicate that both of them made it together, and each of them contributed half the area of the wall’s thickness.

Therefore,

in a place where a sign of “chazit” is seen in both directions,

if the wall fell—

the place and the stones belong to both of them.

Gemara:

They supposed,

the members of the academy who taught our Mishna, in order to explain

what,

what is the meaning of the words of the Mishna: 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.

And accordingly, the intention of the Mishna is not to say that the partners wished to divide the courtyard, and that “partition” means dividing the courtyard into two, for this is not the subject under discussion in the Mishna!

And likewise we find in a beraita, concerning kilayim, that “partition” means a separating fence, and not language of dividing into two:

As it was taught: The partition of a vineyard

of grapevines, adjacent to the grain field of his fellow: 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 kilayim, since the partition separates them, even though their roots beneath the partition are adjacent to one another. The reason for this is that it is not the intermingling of the roots that is prohibited as kilayim, but their growth in one field. The partition separates them into two fields. And if it happened

that it was breached,

the partition of the vineyard, and from now on, if the grain and the grapevines continue to grow side by side, without a separation between them, they become prohibited under the law of kilayim. Since the owner of the vineyard is considered the one causing damage to his fellow’s grain, because his vineyard’s partition was breached, therefore

he 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 with the fence of your vineyard, so that your grapevines will not prohibit my grain.

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

it was breached again

the partition, again

he says to him,

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

Fence

your vineyard!