Bava Batra 59b — the Talmud in English

And can

the owner of the courtyard

protest

against one who wishes to bring out a projecting beam into his fellow’s courtyard, and here there is not the law of “this one benefits and this one does not suffer a loss,” for he certainly does suffer a loss, as the Gemara explains.

But if the projecting beam was jutting into the courtyard with a projection that was

less than a handbreadth

inward into the depth of the courtyard,

he has no hazaka

because it is not the way of the owner of the courtyard to be particular about this, and therefore he did not protest against him.

And he cannot protest.

This will be explained in the Gemara.

Gemara:

Rabbi Asi said in the name of Rabbi Mani—and some say: Rabbi Yaakov said in the name of Rabbi Mani:

If he established a right with a handbreadth—

he established a right with four

handbreadths, and he proceeds to explain it.

And we wondered:

What is he saying!?

For according to its simple meaning, it implies that if he established a right with a projection of one handbreadth into the courtyard, he may bring out the projecting beam up to four handbreadths, and this is certainly impossible, for if he agreed to it for one handbreadth, he did not agree to it for four!

He said—

he explained—

Abaye: This is what he is saying: If he established a right

with a projection into his fellow’s courtyard that had

a width of one handbreadth, for a length of [

in length, that is, in depth]

four

handbreadths into the courtyard,

he established a right

in this also

with a width of four

handbreadths.

He may bring out a projecting beam measuring four handbreadths by four handbreadths, because once the owner of the courtyard agreed to a substantial projection extending four handbreadths into his courtyard, he thereby also agreed that the width of the projection should be four handbreadths, since there is no significant place measuring less than four by four handbreadths.

We learned in the Mishna: A projecting beam

less than a handbreadth has no hazaka, and he cannot protest:

Rav Huna said: They taught

that he cannot protest

only the owner of the roof

who is the owner of the projecting beam,

against the owner of the courtyard

so that he should not hang anything on the projecting beam jutting into his courtyard, and nothing besides, because he causes him no loss at all.

But the owner of the courtyard can protest against the owner of the roof

against him, so that he should not bring out a projecting beam, even one less than a handbreadth, or so that he should not use the projecting beam jutting into his courtyard.

And Rav Yehuda said: Even the owner of the courtyard cannot protest against the owner of the roof.

And the Gemara discusses:

Shall we say—

is it to be said that

it is with regard to visual damage

that they

differ:

For one master—

Rav Huna—

holds

that visual damage

is called damage,

and therefore the owner of the courtyard protests against the owner of the roof, so that he should not bring out a projecting beam into his courtyard, or so that he should not use an existing projecting beam, because when he uses the projecting beam, he damages him by looking into the courtyard.

And the other—

Rav Yehuda—

holds: It is not called damage.

And we reject this:

No,

they did not differ over this. Rather,

everyone

holds that visual damage

is called damage!

But here it is different,

for the owner of the courtyard cannot protest against the owner of the roof from bringing out a projecting beam into the courtyard, because

he can say to him

the owner of the roof can say to the owner of the courtyard: Behold, the projecting beam jutting from my roof into your courtyard is

for use,

to perform a significant and regular use,

not fit.

It is not fit for that.

What is it fit for—

for what use is it fit? Only

to hang something on it

to hang some object on it. And if so, you have no visual damage from this minimal use, because when I wish to hang something on it,

I will turn my face away, and hang it on it

I will turn my face in such a way that I will not see into your courtyard, and I will hang it there. And I will necessarily do so, because since I am able to do so and do not do so, I will appear like a thief.

And the other one,

Rav Huna, who prohibited it, holds

that

he can

say to him

the owner of the courtyard can say to the owner of the roof:

Sometimes you will be frightened.

Sometimes you will be terrified lest you fall from the roof when you bend from the roof toward the projecting beam to hang something on it, and if you do not turn your face away then from my courtyard, you will not appear then like a thief. And if so, every time you wish to look into my courtyard, you will not be concerned that you will appear like a thief, because you will rely on this, that they will say, “He is frightened.”

Mishna:

A.

A person may not open his windows

even

onto a courtyard of partners [

a courtyard in which he is a partner], and all the more so onto another person’s courtyard, because of visual damage.

B. It is forbidden for a person to cause an increase in those entering a shared courtyard, since by doing so he harms the relative privacy [in private matters] that had previously existed in the courtyard.

Therefore, if

one took

one of the partners in the courtyard

a house

adjacent to the courtyard, situated

in another courtyard—

he may not open it onto the courtyard of partners.

He may not make an entrance to his new house from the partners’ courtyard, so that he could also enter the house he acquired from there. For by joining the additional house to the partners’ courtyard, he increases those passing through the shared courtyard, and reduces the privacy that had existed in the courtyard.

And likewise, if he wishes to add to his house by adding a room or an upper story, then if he

built an upper story on top of his house [

that is open to the partners’ courtyard],

he may not open it,

he may not make a separate access opening to the upper story

onto the courtyard of partners,

so that the upper story should not be like a dwelling with a direct entrance from the partners’ courtyard,

but, if he wishes

to add to his dwelling and bring additional residents into it,

he builds the room

the additional one

within his house.

And

likewise

he builds

the

upper story

that he adds to his house

on top of his house, and opens it

to the upper story

into

the room that he added to his

house.

And the Gemara explains it.

Gemara:

We learned in the Mishna: A person may not open his windows onto the courtyard of partners:

And the Gemara understood that the intention of the Mishna is to say that he may not open a window onto a courtyard belonging to other partners, because they are many.

And therefore we ask:

Why specifically,

why does the tannai speak in the Mishna of not opening a window

onto the courtyard of partners

who are many!? Surely

even onto his fellow’s courtyard

who is an individual,

also not

may he open a window!?

And we answer: This matter that we say, that he may not open it onto the courtyard of partners, refers to a courtyard in which he himself is a partner, and “

it is not necessary”

he says.

It is not necessary to say that he may not open it onto his fellow’s courtyard,

he may not open it.

But onto the courtyard of partners,

where the entrance of his house is already open there,

that

he can

say to him

one of the partners who wishes to open his window there can say to his neighbor who objects:

In the end, you already need to seclude yourself from me in the courtyard,

for even without the window you must seclude yourself from me in the courtyard, and you cannot conduct yourself privately in the courtyard, because I see into the courtyard through the entrance of my house. And if so, there would be room to say that it is permitted to open a window onto the courtyard of partners, for what difference does it make that from now on he can look into the courtyard also through his window?

It teaches us

that even onto a courtyard in which he is a partner it is also forbidden, because

that

he can

say to him

the partner who owns the courtyard can say:

Until now,

until this point, only when I was present

in the courtyard, I needed to seclude myself from you.

But

now, even

when I am

in the house

of mine,

I also need to seclude myself from you. [

Before you opened a window, I needed to seclude myself from you only in the courtyard, but not in my house, for you could not look into it, since one does not make an entrance opposite an entrance. But once you opened a window, I also need to seclude myself from you in my house, so that you should not see from your window, which is high, into my house].

The Sages taught: There was an incident involving a certain man who opened his windows onto the courtyard of partners, and he came before Rabbi Yishmael son of Rabbi Yosei,

and claimed that he had received permission to do so from the members of the courtyard.

He said to him,

Rabbi Yishmael son of Rabbi Yosei said to him, “

You have established a right, my son, you have established a right!”

Even though he had not maintained it for three years. For since he maintained it in their presence and they did not protest, Rabbi Yishmael son of Rabbi Yosei holds that immediately it is a hazaka!

And

afterward

that man came

the same man

before Rabbi Hiyya.

And

he said

Rabbi Hiyya said to him, “

You exerted yourself, and opened it for yourself.

Now

exert yourself, and close it!”

Because he had not maintained it for three years.