Bava Batra 2b — the Talmud in English

However, if

the owner of the vineyard despaired of it

from fencing in the breach of his vineyard,

and did not fence it—

it has thereby sanctified!

The produce becomes forbidden by the law of kilayim,

and he is liable

the owner of the vineyard

for it.

And it is proven from this beraita that a “partition” is a wall, a fence that separates!

The Gemara now analyzes the wording of the Mishna:

And the reason,

the reason that the Sages obligated them to build the wall between them is because

they desired,

that they both agreed to build the partition between them; but the erection of the partition is not obligatory by law.

And it follows from this:

indeed,

if they

did not desire

both of them to make a partition between them, but only one of them demands that the other make it—

they do not compel him!

Apparently,

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

damage of sight,

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

is not called

damage,

damage,

and therefore the person harmed by damage of sight is not entitled to demand from his partner who harms him that he share with him the expenses and the area for erecting a partition between them, because damage of sight is not considered damage that obligates the one causing the damage to prevent his damage.

But the Gemara brings another wording, which holds that damage of sight is called damage, and according to it, “partition” means “division,” that is, division of the courtyard between them:

And perhaps: What is “partition”?—

Say another interpretation: What is a partition?

Division,

the division of the courtyard.

For example, in a case where the courtyard was not eight cubits in length, so that it does not contain “the measure for division” of four cubits for each of the partners, and with less than four cubits of courtyard a person has no possibility of using the courtyard. In that case, one cannot compel the other to divide the shared courtyard between them, despite the damage of sight, because there will not remain in his possession sufficient area suitable for use of the courtyard, and because of damage of sight he is not obligated to forgo the use of the courtyard.

And according to this, the meaning of “they desired to make a partition” is that the two of them agreed between themselves to divide the courtyard.

And we find a source in the Torah that mehitza is an expression of division and apportionment,

as it is written [Numbers 31]:

in Numbers 31:

“And it became the half of the assembly,”

whose meaning is half of the assembly.

And according to this wording we must analyze:

And since they desired,

that they agreed between themselves to divide the courtyard, they

build the wall,

even

against the will

of one of them, as stated in the Mishna. For example, he claims: “A thin partition is enough for me to fulfill my obligation to divide the courtyard with you by means of a partition, since I do not wish to waste a great deal of money!” He is not heeded, since there is here damage of sight, which he is obligated to prevent, once he agreed to divide the courtyard by means of a partition, and he must erect a proper partition that will prevent damage of sight.

Apparently,

it is proven from this, according to the explanation of the latter wording, that the tanna in our Mishna holds that

damage of sight is called damage!

The Gemara raises a difficulty against the latter wording:

If so,

if this is so, there is a difficulty:

this,

that which the tanna said,

“that they desired to make a partition,”

is not precise wording, for

“that they desired to divide,” would have been required of him,

the tanna should have said this!

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

Rather, what will you say?

What will you say according to the first wording, that the partition mentioned here is

a fence,

a wall? There is also a difficulty concerning this: Why did the tanna say

“they build the wall”?

After all, the tanna had already spoken of it and called it “a partition,” and if so,

“they build it,” would have been required of him,

this is what the tanna should have said!

The Gemara resolves this:

The first wording is not difficult, because

if,

if the

tanna

had taught, “They build

it,”

and had not said, “the wall,”

I would have thought,

I would have said that the intention of our Mishna is that division requires only

a mere reed partition,

a thin partition of reeds. And “they desired,” which the tanna said, would mean that they agreed to divide the courtyard, because it is speaking of a courtyard that does not contain the measure for division, which is not divided without agreement; but they did not agree between themselves to the building of a stone wall.

It teaches us this,

therefore the tanna wrote “

wall,”

to teach us that if he agreed to build a wall, they compel him to do so according to the specifications established by the Mishna. Only if he did not agree to the building of a wall, but only to the division of the courtyard, do they divide by means of a reed partition.

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

“They build the wall in the middle, and so on”:

The Gemara raises a difficulty according to the first wording, which interprets “they desired to make a partition” as referring to a wall:

Is it obvious!?

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

The Gemara answers:

It is necessary,

the tanna needed to teach this only in a case

where one preceded,

where one of them took the initiative

and appeased his fellow,

and asked his fellow and persuaded him to divide by means of a partition.

Lest you say,

perhaps

he can say to him,

his fellow can say to him:

When I agreed to you,

when I agreed with you to divide, that was specifically in order to reduce for me

the air,

the air of the courtyard; that is, there should be between us a thin partition of thin boards, which is sufficient to prevent damage of sight, and which takes away almost nothing from my area, but only a little from my use of the air of the courtyard. But I did not agree to forgo part of the area that I use. Or: you should build most of the wall on your side, and I will lose only a little of my area. But to build between us a stone wall that reduces

my use,

my use of my courtyard—for this

I did not agree,

I never agreed.

It teaches us this,

therefore the tanna said “in the middle,” to say that they build the wall precisely in the middle, half in this one’s portion and half in that one’s portion. If so, there is a novel point in the matter, and the difficulty of “Is it obvious?” concerning the first wording is removed.

The Gemara now comes to discuss the dispute concerning damage of sight:

And

because

damage of sight is not called damage!?

After all, below we find in several places that damage of sight is damage, and here is their mnemonic for those places:

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

Garden”:

Come and hear,

come and hear a proof from the wording of the Mishna, that damage of sight is called damage, for we learned in our Mishna:

“And likewise in a garden,

they compel him.” And from the fact that even in a garden, where the damage of sight in it is less than in a courtyard, they compel him to build a partition, it is proven that damage of sight is called damage!

The Gemara rejects this:

A garden is different.

The obligation to erect a partition in a garden is different. And the reason there is

as

the words of

Rabbi Abba.

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

beside

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

so that he should not harm the standing grain with the “evil eye.”

And for this reason it is necessary to make a partition in a garden, and the reason is not damage of sight.

But the Gemara raises a difficulty:

But,

after all,

“and likewise”

in a garden

it teaches!

And it implies that the reason for the partition in a garden is the same reason as the partition in a courtyard, namely, damage of sight. The Gemara answers: The word “likewise” does not refer to the reason for the obligation to erect a partition; rather, it refers

to unhewn stone and hewn stone,

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

Wall”:

And the Gemara brings another proof that damage of sight is called damage:

Come and hear

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

A courtyard wall that fell—

they compel him to build up to

a height of

four cubits,

in order to prevent damage of sight, even without his agreement to build.

And it is proven that damage of sight is called damage!

The Gemara rejects this:

A fallen [wall] is different.

One cannot prove from a wall that fell, which had already been built in the past with the agreement of the partners, regarding a courtyard in which there had not been a wall, since in the case of a wall that fell, the original owners had already agreed to it previously.

And the Gemara raises an objection:

And the one who raises it, what is he raising it for!?

What was the initial reasoning of the one who brought proof from a wall that fell, here? Surely it is clear that from there there is no proof regarding a place where there had never been a wall?! And the Gemara answers: His reasoning was that the wording of the Mishna, “fell,” was not stated specifically, but that even if there had not previously been a wall, he is compelled to build up to four cubits. And the reason the tannai mentioned “fell” was because

the latter clause was needed.

For the novelty of the latter clause of that same Mishna, to teach us that in every case,

from four cubits and above—

they do not compel him.

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

Come and hear: They compel him

each of the residents of the courtyard to contribute his share

to build a gatehouse and a door for the courtyard,

in order to prevent visual damage from the members of the public domain, so that they will not look into the courtyard.

Infer from here,

we hear from here that

visual damage is called damage!

And the Gemara again rejects this:

The damage of the public,

where all the members of the public domain look into the courtyard,

is different. And for that reason they compel the individual to participate in the expenses of the gatehouse and the door.

Therefore, the individual can be compelled to participate in the expenses of the gatehouse and door.

But that of an individual, no.

But the visual damage of a single person, such as in the courtyard of partners, is not considered damage. “

They divide”:

Come and hear: They do not divide the courtyard

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

until there is

in it

an area of

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

And this proves:

If it has enough for

four cubits

for this one and enough for

four cubits

for that one—

they divide.

What,

with what do they divide?

Is it not with a wall,

and is it not with a wall? Surely the reason is visual damage!

And the Gemara rejects this:

No!

Rather,

with merely a partition.

A thin partition of boards, through which one can see the area of the other. And they made it only to separate between the two portions. “

Windows”:

Come and hear: The windows

of one of the residents of the courtyard, which open toward the courtyard of his fellow, and this matter had been established for three years, so that he cannot compel him to seal them, and the owner of the courtyard came to build a wall opposite them,

whether above,

when he comes to raise the wall above the windows,

whether below

so that the height of the wall will be lower than them,

or whether opposite them,

so that the wall will be at the height of the windows, he must distance the wall from his fellow’s windows

four cubits.

And it was taught concerning it,

and we learned concerning this in a beraita:

Above,

he must distance the wall

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 distance the wall opposite the windows four cubits,

so that it will not darken

his fellow’s house.

And from the fact that he prevents him from looking into his domain, it is heard that visual damage is called damage.

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

the damage of a house is different—

the damage of looking into the inside of a house is greater, because a person does private things in his house, things that one does not customarily do in a courtyard. “

Of Rav Naḥman”:

Come and hear: For Rav Naḥman said in the name of Shmuel: A roof

of a house

adjacent to his fellow’s courtyard,

in a situation in which the house stood on a lower level and the courtyard on an upper level, and the ground of the courtyard was level with the height of the roof of the house,

they make for it,

the owner of the roof must make

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 this proves that visual damage is called damage!

And the Gemara again rejects this:

That case 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 established,

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

for you, your use is not established,

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 come,

at what time you go up and come to use your roof

so that I can seclude myself from you,

so that I can guard myself from you and not do private things at that time.

And therefore, there is no proof from here concerning a courtyard, where the use of both of them is regular, each in his portion. And private things are not done in it.