Bava Batra 2b (ב:) — the Talmud in English

However, if

the owner of the vineyard despaired of repairing it

and enclosing the breach in his vineyard,

but did not repair it—

it has thereby become sanctified!

The produce is prohibited under the law of kilayim,

and

the owner of the vineyard

is liable for it.

It is thus demonstrated from this beraita that a meḥitza is a wall—a fence that separates!

The Gemara now analyzes the wording of the Mishna:

And the reason

that the Sages obligated the two of them to build a wall between them is because

they wanted to

—they both agreed to build the partition between them; but the construction of the partition is not required by law.

This implies:

yes,

if they

did not both want

to make a partition between them, but only one of them demanded that the other make one—

he is not compelled to do so!

Apparently,

it is evident from here that the tanna of our Mishna holds that

visual damage,

caused by the other through looking into his fellow’s property,

is not called

and is not considered

damage.

Therefore, the person harmed by visual damage is not entitled to demand that his partner who causes it share with him the expenses and the space needed to construct a partition between them, because visual damage is not considered damage that obligates the one causing it to prevent it.

But the Gemara cites another interpretation, which holds that visual damage is indeed considered damage. According to it, “partition” means “division,” namely, dividing the courtyard between them:

And say instead: What is the meaning of “partition”?

Say another interpretation: What is a partition?

A division,

the division of the courtyard.

For example, this applies in a case where the courtyard was not eight cubits long, so that it did not contain the “measure for division” of four cubits for each of the partners. A courtyard smaller than four cubits cannot be used by a person. In that case, one cannot compel the other to divide the jointly owned courtyard between them, despite the visual damage, because he would not retain sufficient space suitable for use as a courtyard; and because of visual damage he is not required to forfeit the use of the courtyard.

Accordingly, the meaning of “they wanted to make a partition” is that the two of them agreed to divide the courtyard between them.

We find a source in the Torah for the use of meḥitza to mean separation and division,

as it is written

[Numbers 31]:

“And it became a division of the assembly,”

meaning half of the assembly.

According to this interpretation, we must infer:

And since they wanted,

having agreed to divide the courtyard between them, they

build the wall,

even

against the will

of one of them, as stated in the Mishna. This is, for example, when he claims: “A thin partition is sufficient for me to fulfill my commitment to divide the courtyard with you by means of a partition, since I do not wish to spend a great deal of money!” He is not heeded, since visual damage exists here, and he is obligated to prevent it once he agreed to divide the courtyard by means of a partition; he must therefore erect a proper wall that will prevent visual damage.

Apparently,

it is evident from this, according to the latter interpretation, that the tanna of our Mishna holds that

visual damage is considered damage!

The Gemara raises an objection to the latter interpretation:

If so,

the following difficulty arises:

this,

that which the tanna stated,

“that they wanted to make a partition,”

is not precise wording, because

“that they wanted to divide” would have been required;

that is what the tanna should have said!

But the Gemara says that the first interpretation is also difficult:

Rather, what will you say?

According to the first interpretation, that the meḥitza mentioned here means

a wall,

there is likewise a difficulty: Why did the tanna say

“they build the wall”?

The tanna had already spoken of it and called it a “partition”; if so,

“they build it” would have been required;

that is what the tanna should have said!

The Gemara answers:

The first interpretation is not difficult, because

if

the

tanna

had taught, “They build

it,”

rather than saying, “the wall,”

I would have said

that the intention of our Mishna was that division requires only

a mere mesiphas,

a thin partition of reeds. And “they wanted,” as stated by the tanna, would mean that they agreed to divide the courtyard, because the case concerns a courtyard that does not contain the measure for division and cannot be divided without their agreement; but they did not agree between them to build a stone wall.

It teaches us

therefore the tanna wrote “

wall,”

to teach us that if he agreed to build a wall, he is compelled to do so according to the parameters established by the Mishna. Only if he agreed to the division of the courtyard but not to the construction of a wall do they divide it with a mesiphas.

The Gemara now continues to analyze the wording of the Mishna:

“They build the wall in the middle, etc.”

The Gemara raises a difficulty according to the first interpretation, which explains that “they wanted to make a partition” means a wall:

Is it obvious!?

Why does the Mishna need to specify that they build the wall in the middle?

The Gemara answers:

It is necessary

for the tanna to teach this only in a case

where one took the initiative

and one of them went first

and appeased his fellow,

requesting that his fellow agree to divide the property by means of a partition.

Lest you say

that perhaps

he can say to him:

his fellow may say to him:

When I agreed to you,

when I agreed to divide the property with you, I agreed only to reduce

the airspace,

the air of the courtyard. That is, there should be between us a thin partition of narrow boards, sufficient to prevent visual damage, which takes away almost none of the usable area, but only slightly reduces my use of the airspace of the courtyard. I did not agree, however, to relinquish part of the area that I use. Alternatively, you should build most of the wall on your side, so that I lose only a small amount of my area. But to build a stone wall between us that reduces

the use,

my use of my courtyard—I

did not agree to that;

I never agreed to it.

It teaches us

that the tanna therefore said “in the middle,” to state that the wall is built precisely in the middle, half on the property of each one. This is indeed a novel point, and the question of “Is it obvious?” is removed according to the first interpretation.

The Gemara now turns to the dispute concerning visual damage:

And

for

visual damage is not considered damage!?

But we find in several passages below that visual damage is considered damage. The mnemonic for those passages is:

Mnemonic: Garden, Wall, Compel, and Divide, the Windows of Rav Naḥman “

Garden”:

Come and hear,

a proof from the wording of the Mishna, that visual damage is considered damage, as we learned in our Mishna:

“And similarly with regard to a garden,

he compels him.” From the fact that even in a garden, where the visual damage is less severe than in a courtyard, he compels him to build a partition, it is evident that visual damage is considered damage!

The Gemara rejects this:

A garden is different.

The obligation to construct a partition in a garden is different. The reason there is

as

the words of

Rabbi Abba.

For Rabbi Abba said that Rav Huna said that Rav said: It is prohibited for a person to stand

beside

his fellow’s field when it is standing in its stalks,

so that he not damage the standing crop through the evil eye.

It is for this reason that a partition must be made in a garden, and not because of visual damage.

But the Gemara objects:

But,

is it not the case that

“and similarly”

in a garden

is taught!

This implies that the reason for the partition in a garden is the same as the reason for a partition in a courtyard, namely, visual damage. The Gemara answers: The word “similarly” does not refer to the reason for the obligation to construct a partition; rather, it refers

to rubble and hewn stone,

to the types of stones with which the partition is built in a garden, just as in a courtyard. “

Wall”:

The Gemara brings an additional proof that visual damage is considered damage:

Come and hear

a proof from that which we learned below [5a]:

If a courtyard wall fell,

he compels him to build it up to

a height of

four cubits,

in order to prevent visual damage, even without his agreement to build it.

It is thus evident that visual damage is considered damage!

The Gemara rejects this:

A fallen wall is different.

One cannot prove anything from a wall that fell, which had previously been built with the agreement of the partners, concerning a courtyard in which there had never been a wall. In the case of a fallen wall, the original owners had already agreed to it.

And the Gemara raises an objection:

“But the one who cites it, what is he citing it for?”

What was the initial reasoning of the one who brought proof from a wall that collapsed, to this case? Clearly, there is no proof from there to a place where there had never been a wall! And the Gemara answers: His reasoning was that the wording of the Mishna, “collapsed,” was not stated specifically; rather, even if there had never previously been a wall, he is required to build one up to four cubits. And the reason the tanna mentioned “collapsed” was that

“the latter clause was necessary.”

It was stated in order to teach the novelty of the latter clause of that Mishna: that in every case,

“from four cubits and above”—

“he is not required.”

Even in a place where the first wall had been higher. “They compel”: Another attempt to prove that visual intrusion is called damage:

“Come and hear: They compel him”

each of the members of the courtyard to contribute his share

“to build a gatehouse and a door for the courtyard,”

in order to prevent visual intrusion by the people of the public domain, so that they will not look into the courtyard.

“Infer from this”:

we learn from here that

“visual intrusion is called damage!”

And the Gemara rejects this again:

“The damage caused by the public,”

as all the people of the public domain look into the courtyard,

“is different.”

And for this reason, the individual may be compelled to participate in the expenses of the gatehouse and door.

“But not [in the case of] an individual.”

However, the visual intrusion of a single person, as in the case of a courtyard belonging to partners, is not considered damage. “

Dividing”:

“Come and hear: The courtyard may not be divided”

belonging to partners, such as brothers dividing their father’s estate, against the will of one of them,

“unless there is”

“in it”

an area of

“four cubits for this one and four cubits for that one.”

And it follows from this:

“If it has enough for”

four cubits

“for this one and enough for”

four cubits

“for that one”—

“they divide it.”

“What”

are they dividing?

“Is it not with a wall,”

and if not with a wall, then surely the reason is visual intrusion!

The Gemara rejects this:

“No!”

Rather,

“with merely a meḥitza.”

A thin partition of boards, through which one can see the area belonging to the other. It was made only to distinguish between the two sections. “

Windows”:

“Come and hear: The windows”

of one of the members of the courtyard that open toward the courtyard of his fellow, and he established his right to this over a period of three years, so that the latter cannot compel him to seal them, and the owner of the courtyard comes to build a wall opposite them:

“whether above,”

when he comes to raise the wall above the windows,

“whether below,”

so that the wall will be lower than them,

“or opposite them,”

so that the wall will be at the same height as the windows, he must set the wall four cubits away from his fellow’s windows,

“four cubits.”

“And it was taught concerning it,”

and a beraita was taught concerning this:

“Above,”

he must set the wall back

“so that he will not peer and see”

into his fellow’s house.

“Below, so that he will not stand”

on the top of the thickness of his wall

“and see. Opposite them,”

he must set the wall opposite the windows four cubits away,

“so that it will not darken”

his fellow’s house.

And from the fact that he is prevented from looking into the other’s domain, it follows that visual intrusion is called damage.

The Gemara rejects this: There is no proof from here either, because

“damage involving a house is different”—

the damage caused by looking into a house is greater, because a person engages in private activities in his house that he does not generally engage in within a courtyard. “

Rav Naḥman”:

“Come and hear: For Rav Naḥman said that Shmuel said: A roof”

of a house

“adjacent to his fellow’s courtyard,”

where the house stood at a lower level and the courtyard at a higher level, and the ground of the courtyard was level with the roof of the house,

“a”

roof owner must make for it

“a railing four cubits high,”

so that he will not see into his fellow’s courtyard [which is opposite him] when he uses his roof.

And it follows that visual intrusion is called damage!

The Gemara rejects this again:

“There, it is different,”

that case is different, because

“he says to him,”

the owner of the courtyard says to the owner of the roof:

“For me, my use is fixed,”

for me, my use of the courtyard is a regular use, every day, whereas

“for you, your use is not fixed,”

your use of the roof is not regular.

“And I do not know,”

and therefore I do not know

“at what time you go up and return,”

at what time you go up and use your roof

“so that I can seclude myself from you,”

so that I can guard myself from you and not engage in private activities at that time.

Therefore, there is no proof from here concerning a courtyard in which both parties’ use is regular, each in his own section. Private activities are not performed there.