Bava Batra 4b (ד:) — the Talmud in English

Rabbi Yohanan said:

he should plaster with mortar the outer side of the upper cubit,

the upper cubit should be plastered with mortar at the top of the wall, on the outside.

The Gemara asks:

And let him make it on the inside,

and let him do so from the inside?

The Gemara answers:

His partner will do it on the outside as well,

his partner too will do the same on the outside,

and say: It belongs to me and to him,

it is mine and his.

The Gemara challenges this:

If so,

if there is concern that his partner will act deceitfully,

now too,

even now, when he has plastered a cubit on the outside,

his partner will peel it off,

his partner can peel it off,

and say

and claim:

It belongs to me and to him!

The Gemara answers:

Peeling is recognizable –

the peeling is known and recognizable to everyone.

The Gemara explains how a ḥazit is made for a partition of reeds:

Reeds,

if they made a partition from reeds, how is a ḥazit made for it?

Rav Naḥman said: The ends of the reeds should be bent outward.

He should direct the ends of the reeds so that they bend outward, toward his partner’s side.

The Gemara asks:

And let him make it on the inside,

let him do it from the inside; that is, let him direct them inward?

The Gemara answers as before:

His partner will do it on the outside as well,

his partner too will do it on the outside, directing them toward his own side,

and say

and claim:

It belongs to me and to him,

the partition belongs to me and to him.

The Gemara challenges this:

If so,

if there is concern about deceit,

now too,

even now, although he directs them outward,

he can cut them off and discard them,

he can cut off the ends of the reeds and throw them away.

And say: It belongs to me and to him!

The Gemara answers:

He should smear mortar over it,

he should plaster it with mortar in such a way that his partner will be unable to cut them off or throw them away. And if he does so, it will be recognizable.

The Gemara nevertheless challenges this:

Now too,

even now there is a concern that

his partner will come

and his partner will come

and peel it off,

and peel away the mortar?!

The Gemara answers:

Peeling is recognizable,

the peeling is known and recognizable.

Abaye said: A partition of reeds has no remedy,

a partition of reeds has no remedy through a ḥazit, since whatever sign he makes, his partner can come and make the same sign, or peel away the mortar, and this will not be recognizable.

Rather,

its only remedy is

through a document.

If one of them made the partition, he should record the matter in a document and bring witnesses who will confirm it with their signatures. And if both of them made it, witnesses should testify to this and sign the document.

And at the conclusion of the Mishna we learned: “But if they made it with the consent of both of them, they build the wall in the middle. And they make a ḥazit on this side and on that side, etc.”:

Rava of Parzika said to Rav Ashi:

Why must both of them make a ḥazit?

Let neither this one nor that one make one.

Then we will know automatically that it belongs to both of them. For if one of them had made it alone, he would have made a ḥazit on the outside.

He said to him,

Rav Ashi

said to him: It is necessary,

the tanna needed to teach us this only in a case

where one of them acted first and made his own.

One of them acted first and made a ḥazit on his side.

And if his partner does not make one,

then, if his partner also does not make a ḥazit,

he will say,

the first one will say:

It belongs to him,

it belongs to him.

Rava nevertheless wondered:

And

why did the

tanna

of our Mishna

teach an enactment

an enactment

for the deceitful person

[against the deceitful person]

as a matter to be made known

did he come to teach us this!?

He said to him,

Rav Ashi

said to him: And

why,

is the first clause not an enactment for the deceitful person!?

Is the first clause of our Mishna, which says “and he makes a ḥazit on the outside,” not an enactment against the deceitful person, so that the second one should not say, “It belongs to both of us”? Rather, the tanna must have taught an enactment against the deceitful person both in the first clause and in the latter clause.

He said to him,

Rava said to him: There is a difference between the first clause and the latter clause, and therefore you cannot give this answer.

Granted, in the first clause,

it is well that the tanna

taught a law,

the tanna teaches the law concerning an open field: since the practice there is not to fence, he cannot compel his partner to do so; rather, he withdraws into his own property and builds.

And because of the law, he taught the enactment.

Because of the law that he teaches, he also states the enactment applicable to it: that he makes a ḥazit because of the deceitful person.

But

with regard to what is stated in the

latter clause,

there is cause to wonder: Is it that

he teaches a law!?

Does the tanna teach a particular law there, such that we could say

that because he teaches a law, he teaches an enactment,

that because of it he also teaches the enactment?! Surely, if they build the wall with the consent of both of them, it is obvious that they must build it jointly! It follows that he is stating these words only because of the enactment.

Ravina said: Here we are dealing with reeds,

here the case concerns a partition of reeds. The novelty in the tanna’s statement is

to exclude Abaye’s opinion,

to exclude what Abaye said above, namely:

“A partition of reeds has no remedy except through a document.”

He comes to teach us

therefore the tanna teaches us here

that a ḥazit suffices.

A ḥazit is sufficient!

Mishna:

One who surrounds

the field of

his partner

with a fence

on three sides, and fenced the first, the second, and the third

he acquired three fields surrounding his partner’s field on three sides and fenced all three of them, with the result that this middle field is enclosed on three sides.

They do not compel him,

the owner of the middle field, to participate in the expenses, because an ordinary open field is considered a place where the practice is not to fence.

Rabbi Yosei says: If he stood

the enclosed owner

and fenced even the

fence on the

fourth

side, they assess against him

against the enclosed owner

the entire amount .

He must pay his share of the expenses of the first three fences. By fencing the open fourth side, the enclosed owner demonstrated that he is pleased with what his partner had fenced initially. Therefore, he must participate in the expenses.

Gemara:

Rav Yehuda said that Shmuel said: The halakha is in accordance with Rabbi

Yosei, who said: If he stood and fenced the fourth side, they assess the entire amount against him. It makes no difference,

and it makes no difference whether

the enclosed owner stood

and fenced, in which case there is reason to obligate him because he demonstrated that the fence benefits him,

it makes no difference

and it makes no difference whether

the one who surrounded the field stood

and fenced, thereby completing the benefit the enclosed owner receives from all the fences, since from now on animals can no longer enter his field from any direction—in either case, they assess the entire amount against him!

It was stated: Rav Huna said:

What Rabbi Yosei said, that they assess

“the entire amount”

means

according to what he fenced.

The enclosed owner must now reimburse him for half of all the expenses that the first one incurred in building the fences.

And Ḥiyya bar Rav said:

He does not participate according to what the one who surrounded the field spent; rather, everything is calculated

according to

the price of

inexpensive reed fencing.

For he can claim: “A simple reed fence would have sufficed for my field; I do not want to bear the expense of an expensive stone wall.” The Gemara now analyzes their statements in light of the Mishna:

We learned

in the Mishna:

“One who encloses his fellow on three sides, and fenced the first, the second, and the third”—

they do not charge him

the one whose field was enclosed, to pay.

And it follows:

the fourth—

they do charge him!

But if so,

say the latter clause: Rabbi Yosei says: If he stood and fenced the fourth—

they assess all of it against him.

The Gemara attempts to understand the dispute between the tannaim in the Mishna [the Sages and Rabbi Yosei] according to the two opinions:

Granted,

it is understandable

according to Rav Huna, who says

they charge him

“everything is according to what he fenced,” for this is the difference between the first tanna and Rabbi Yosei:

this is the difference between the Sages and Rabbi Yosei, for

the first tanna holds

that even when he stood and fenced the fourth side, he does not pay him according to what he fenced, but rather

according to the cost of reeds purchased cheaply; not—

indeed

! But

according to

what he fenced—

no.

And Rabbi Yosei holds: Everything is according to what he fenced.

And for this reason the Sages use the expression “they charge him,” whereas Rabbi Yosei says, “they assess all of it against him.”

But

according to the view of

Hiyya bar Rav, who says: “everything,”

namely, everything

according to the cost of reeds purchased cheaply.

And this is Rabbi Yosei’s view. This is difficult:

What difference is there

what dispute is there

between the first tanna and Rabbi Yosei?

But

if

even

the cost of reeds purchased cheaply

not

does he give him,

he does not give him,

what does he give him?

What does he give him instead!?

The Gemara resolves this in three ways:

If you wish, say

a resolution:

The fee for guarding it is the difference between them.

With regard to the payment for protection: that is, the small wage paid to a watchman for that period, when the field is standing with its crops and requires protection, there is a difference between them.

The first tanna holds: The fee for protection, yes,

the fee for protection does obligate him. If he fenced the fourth side. But

the cost of reeds purchased cheaply, no!

And Rabbi Yosei holds:

He must give

the cost of reeds purchased cheaply,

and it is not sufficient for him to pay the cost of protection.

And if you wish, say:

With regard to the obligation to pay at the end also for the

first, second, and third sides, there is a difference between them,

there is a difference between them.

The first tanna holds:

If he stood and fenced, it is specifically for the

fourth that he gives him,

he must give him.

But

for the

first, second, and third, he does not give him.

He does not pay him retroactively, because he had already been found exempt by the court from liability for them when the one who enclosed the field built them and sued him for payment.

And Rabbi Yosei holds: For the first, second, and third as well, he gives him.

He also pays him for them according to the cost of reeds, whether the one who enclosed the field built them or the one whose field was enclosed built them.

Alternatively, say: The one who enclosed the field and the one whose field was enclosed are the difference between them.

The difference between them is whether specifically the one whose field was enclosed must fence the fourth side in order to become liable for all of them, or perhaps it makes no difference which of them fences it, since in any event the one whose field was enclosed benefits from the fencing.

For the first tanna holds: The reason

the reason that he becomes liable is because

when the one whose field was enclosed stood, it is that they assess all of it against him,

since he revealed his intention.

But

if

the one who enclosed the field stood

and fenced the fourth side as well, and there was no positive indication of intent on the part of the one whose field was enclosed concerning the first three, for which he had already been exempted,

he gives him only the cost of the fourth.

And Rabbi Yosei holds: It makes no difference,

it makes no difference whether

the one whose field was enclosed, it makes no difference

whether

the one who enclosed the field,

in either case:

if he stood and fenced—

they assess all of it against him.

Another version:

Another formulation explains the matter in the reverse manner:

The one who enclosed the field and the one whose field was enclosed are the difference between them—

there is a difference between them.

The first tanna holds: If the one who enclosed the field fences the fourth side, he gives him as well.

And Rabbi Yosei holds:

Specifically,

if the one whose field was enclosed stood and fenced the fourth side, it is that he gives him.

Because

he revealed his intention,

he revealed his intention

that he is pleased

with the fence.

But if the one who enclosed the field fenced it, he gives him nothing,

he gives him nothing.

The Gemara relates an incident concerning the one who enclosed the field and the one whose field was enclosed: