Bava Batra 59a (נט.) — the Talmud in English

And the Gemara raises an objection to Rav Yirmeya bar Abba from our Mishna:

We learned

in our Mishna:

The mazḥeila has a presumption of ownership

in contrast to the marzev, which does not have a presumption of ownership.

Granted, according to the one who says

those two,

the two amoraim who stated the first two interpretations of “the marzev does not have a presumption of ownership,”

well

the tanna in the Mishna properly stated that there is a distinction between a mazḥeila, which has a presumption of ownership, and a marzev, which does not have a presumption of ownership: either because the use of the marzev is not fixed in one direction, whereas the use of the mazḥeila is fixed in one direction, or because the mazḥeila cannot be shortened, whereas the marzev can be shortened.

But according to the one who says

the third interpretation of “the marzev does not have a presumption of ownership,”

that if he wishes

the owner of the courtyard

to build beneath it, he may build,

it follows that, in contrast, the mazḥeila does have a presumption of ownership, in that the owner of the courtyard may not build beneath the mazḥeila that projects into his fellow’s courtyard.

And this is surprising:

what difference does it make

to the owner of the mazḥeila

to him [

that the owner of the courtyard builds beneath his mazḥeila ]? Surely the owner of the courtyard did not subordinate any part of his courtyard to something that the owner of the mazḥeila does not need?!

And we answer:

Here we are dealing with a built mazḥeila [

built of bricks

in this case ].

For he says to him

the owner of the mazḥeila says to the owner of the courtyard: “I do not want you to build beneath my mazḥeila, because

I do not want my wall to be damaged.

I do not want the foundations of my mazḥeila to be weakened by the hammers, ax, and every iron implement when you build your structure.”

Rav Yehuda said that Shmuel said: If a pipe directs water into his fellow’s courtyard, and the owner of the roof comes to seal it,

then

the owner of the courtyard may prevent him

because

he says to him

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

Just as you acquired the right to use my courtyard to cast water into it, so too I acquired the water from your roof.

Just as you acquired the right to cast water into my courtyard, so too I acquired the right to receive the water descending from your roof through the marzev into my courtyard, in order to water my animals with it; and it was on this condition that I agreed to your arrangement!

It was stated: Rabbi Oshaya said: He may prevent him

the owner of the courtyard may prevent the owner of the roof from sealing his marzev.

Whereas

Rabbi Hama,

the father of Rabbi Oshaya,

said: He may not prevent him,

because the owner of the roof did not subordinate his water to him; rather, this applies only as long as the water descends into his courtyard.

They went and asked him,

they went and asked

Rabbi Bisa,

the father of Rabbi Hama and grandfather of Rabbi Oshaya, and

he said to them

in accordance with the statement of his grandson, Rabbi Oshaya:

He may prevent him.

Rami bar Hama applied to him,

to Rabbi Oshaya, the verse: “

And the threefold cord will not quickly be severed,”

this is Rabbi Oshaya, son of Rabbi Hama, son of Rabbi Bisa,

for he ruled in accordance with his grandfather.

We learned in the Mishna:

An Egyptian ladder does not have a presumption of ownership:

And we explain:

What are the circumstances of an Egyptian ladder?

The school of Rabbi Yannai say: Any ladder that does not have four rungs [

steps ].

We learned in the Mishna:

An Egyptian window does not have a presumption of ownership.

What is an Egyptian window? Any window through which a person’s head cannot enter. Rabbi Yehuda says: If it has a frame, then even though a person’s head cannot enter through it, it has a presumption of ownership:

And we ask:

What is different with regard to a ladder, that the tanna does not explain

what its measure is as an Egyptian ladder,

and what is different with regard to a window, that he does explain

what its measure is as an Egyptian window?!

And we answer: The tanna taught the measure of an Egyptian window

because Rabbi Yehuda wished to dispute it in the latter clause.

Since the tanna wished to bring the dispute of Rabbi Yehuda, who disagreed with this measure in a case where the window has a frame, the first tanna therefore had to state what the measure is according to his opinion.

Rabbi Zeira said:

A Tyrian window that one made at a height suitable for use,

below four cubits,

that is, it is not four cubits above the floor of the house, and one can see through it into the courtyard,

has

the one who has established possession of the window

a presumption of ownership.

And

on the other hand,

can

the owner of the courtyard

protest

to the owner of the window, preventing him from opening it toward his courtyard, before the owner of the window has established possession through opening his window.

But an Egyptian window that was placed

above four cubits

above the floor of the house, through which it is not convenient to look,

does not have a presumption of ownership,

because the owner of the courtyard does not object.

And

similarly, conversely,

he may not protest

the owner of the courtyard may not protest to the owner of the window, preventing him from opening such a window toward his courtyard.

And

whereas

Rabbi Ilaa said: Even above four cubits it does not have a presumption of ownership, but

nevertheless,

he may protest.

That is, even in the case of a window above four cubits, where the owner of the window has no presumption of ownership, because the owner of the courtyard can say to him, “I do not object to this, and that is why I allowed you to open it,” nevertheless, if the owner of the courtyard wishes, he may protest against him.

And the Gemara discusses this:

Shall we say

that

the

law of

one compels another with regard to the measure of Sodom [

that one compels those who provide no benefit to their fellow while suffering no loss themselves ],

is the subject of the dispute

between Rabbi Zeira and Rabbi Ilaa?

As one

Rabbi Zeira

holds: One compels

with regard to the measure of Sodom. Therefore, if the window is higher than four cubits, so that he cannot see from there into the owner’s courtyard, the owner of the courtyard suffers no loss, and he cannot protest to prevent him from opening it; rather, he is compelled to allow him to open it.

And the other

Rabbi Ilaa

holds: One does not compel

with regard to the measure of Sodom.

And we reject this:

No,

this is not the subject of their dispute; rather,

everyone

holds

one compels

with regard to the measure of Sodom.

But here it is different, because the owner of the courtyard may protest against the opening of the window, since

for the owner of the courtyard can protest against opening the window, because

he says to him

the owner of the courtyard says to the owner of the window:

At times you may place a stool beneath you, stand on it, and look.

You may at times put a stool beneath yourself and stand on it in order to look into my courtyard.

And the Gemara relates an incident involving

a certain

man

who came before Rabbi Ami,

and wished to make a window above four cubits, while the owner of the courtyard protested against him.

He sent him,

Rabbi Ami sent

to Rabbi Abba bar Memel,

to ask how to rule in this case.

He said to him,

Rabbi Abba bar Memel answered Rabbi Ami:

Rule for him in accordance with Rabbi Ilaa,

decide the case according to Rabbi Ilaa, who said that the owner of the courtyard may protest.

Shmuel said: And

a window made

for light [

to bring light into the house ],

even if

it is no larger than

any size, has a presumption of ownership.

And what the Mishna taught—that an Egyptian window does not have a presumption of ownership—was stated only when it was not made for light, but solely in order to look through it.

Mishna:

A projection

that projected from the wall into his fellow’s courtyard,

up to one handbreadth

into the depth of the courtyard,

has a presumption of ownership,

and the owner of the courtyard may not build there and demolish the projection.