Bava Batra 59b (נט:) — the Talmud in English

And the owner of the courtyard

can

protest

against one who wishes to extend a projection into his fellow's courtyard, and the principle of “this one benefits and that one does not suffer a loss” does not apply here, because he certainly does suffer a loss, as the Gemara explains.

However, if the projection extended into the courtyard by a protrusion that was

less than a handbreadth

in depth into the courtyard,

he has no presumption of ownership

because it is not customary for the owner of the courtyard to object to this, and therefore he did not protest.

And he cannot protest.

This will be explained in the Gemara.

Gemara:

Rabbi Asi said that Rabbi Mani said; and some say: Rabbi Yaakov said that Rabbi Mani said:

If he established his right with a handbreadth—

he established it with four

handbreadths, and it proceeds to explain this.

And we raise an objection:

What is he saying!?

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

He said—

he explained:

Abaye said: This is what he is saying: If he established his right

with a protrusion into his fellow's courtyard that had

a width of one handbreadth, for a length of [

that is, along its length, meaning its depth,]

four

handbreadths into the courtyard,

he established

his right thereby also

to a width of four

handbreadths.

He may extend a projection measuring four handbreadths by four handbreadths, because once the owner of the courtyard agreed to a significant protrusion extending four handbreadths into his courtyard, he thereby also agreed that the protrusion would have a width of four handbreadths, since an area of significance is not less than four by four handbreadths.

We learned in the Mishna: A projection

less than a handbreadth has no presumption of ownership, and one cannot protest:

Rav Huna said: They taught

that one cannot protest

only when the owner of the roof

who owns the projection

is facing the owner of the courtyard,

so that he should not hang anything on the projection extending into his courtyard, and the reason is that he causes him no loss whatsoever.

But the owner of the courtyard may protest to the owner of the roof

and prevent him from extending a projection even less than a handbreadth, or from using the projection extending into his courtyard.

And Rav Yehuda said: Even the owner of the courtyard may not protest to the owner of the roof.

And the Gemara analyzes this:

Let us say,

is it to be said that

they disagree with regard to visual harm:

is what they

disagree about:

For one master,

Rav Huna,

holds

that visual harm

is considered harm,

and therefore the owner of the courtyard may protest to the owner of the roof, preventing him from extending a projection into his courtyard or from using an existing projection, because when he uses the projection, he causes him visual harm by looking into the courtyard.

And the other master,

Rav Yehuda,

holds: It is not considered harm.

And we reject this:

No,

that is not the matter over which they disagree. Rather,

everyone

holds that visual harm

is considered harm!

But here it is different,

as the owner of the courtyard cannot protest to the owner of the roof and prevent him from extending a projection into the courtyard, because

he can say to him:

The projection extending from my roof into your courtyard

is not suitable for use,

for any significant and permanent use.

It is not suitable

for that.

For what use is it suitable

if not

to hang something on it?

And if so, this limited use does not create visual harm for you, 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 this and do not do it, I will appear to be a thief.

And the other,

Rav Huna, who prohibited it, holds

that

he

can say to him,

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

Sometimes you will be frightened.

There will be times when you will be frightened that you might fall from the roof when you bend down from the roof toward the projection to hang something on it, and if you do not then turn your face away from my courtyard, you will not appear to be a thief at that moment. And if so, whenever you wish to look into my courtyard, you will not be concerned that you will appear to be a thief, because you will attribute it to this, saying: “He is frightened.”

Mishna:

a.

A person may not open windows

even

to a courtyard shared by partners [

a courtyard in which he is a partner], and certainly not to another person's courtyard, because of visual harm.

b. A person is prohibited from causing an increase in the number of people entering a shared courtyard, since by doing so he impairs the relative privacy [that is, the privacy] that previously existed in the courtyard.

Therefore, if

one of the partners

in the courtyard

acquired a house

adjacent to the courtyard, situated

in another courtyard—

he may not open it into the courtyard shared by the 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 the number of passersby in the shared courtyard and reduces the privacy that existed in the courtyard.

Likewise, if he wishes to enlarge his house by adding a room or an upper story, then if he

built an upper story on top of his house [

which is open to the courtyard shared by the partners],

he may not open it,

that is, he may not make a separate accessway to the upper story

from the courtyard shared by the partners,

so that the upper story would be like an apartment with direct entrance from the partners' courtyard,

but if he wishes

to enlarge his apartment and bring additional residents into it,

he builds the room

he is adding

inside his house.

And

likewise he

builds

the

upper story

that he is adding to his house

on top of his house, and opens it

to the upper story

into

the room he added to

his house.

The Gemara explains this.

Gemara:

We learned in the Mishna: A person may not open his windows to a courtyard shared by the partners:

And the Gemara assumed that the intention of the Mishna is to say that one may not open a window to a courtyard belonging to other partners, because they are numerous.

Therefore, we ask:

Why particularly,

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

to a courtyard shared by the partners,

who are numerous? For

even to his fellow's courtyard,

who is an individual,

also not

may he open a window!?

And we answer: When we say that he may not open a window to a courtyard shared by the partners, this means a courtyard in which he himself is a partner, and the expression

“it is not necessary”

is stated.

It is not necessary to say that he may not open a window to his fellow's courtyard,

that he may not open it.

But with regard to a courtyard shared by the partners,

where the entrance to his house is already open,

that

he

can say to him,

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

Ultimately, you already have to seclude yourself from me in the courtyard. Even without the window, you must already take precautions around me in the courtyard, and you cannot conduct yourself privately in the courtyard, because I see into it through the entrance to my house. And if so, one might have said that it is permitted to open a window to the partners' courtyard, for what difference does it make that from now on he can also look into the courtyard through his window?

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?

This teaches us

that it is prohibited even with regard to a courtyard in which he is a partner, because

he

can

say to him,

the partner who owns the courtyard:

Until now,

until this point, only when I was

in the courtyard did I have to seclude myself from you.

But

now, even

when I am

in my house

of mine,

I also have to seclude myself from you. [

Before you opened a window, I had to seclude myself from you only in the courtyard, but not in my house, since you could not look into it, as one may not make an entrance directly opposite an entrance. But once you opened a window, I must seclude myself from you even in my house, so that you will not see from your window, which is higher, into my house].

The Sages taught: There was an incident involving a certain man who opened windows facing a courtyard shared by the partners, and he came before Rabbi Yishmael bar Rabbi Yosei,

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

He said to him,

Rabbi Yishmael bar Rabbi Yosei: “

You have established your right, my son; you have established your right!”

Even though he had not maintained it for three years. Since he had done so in their presence and they had not protested, Rabbi Yishmael bar Rabbi Yosei holds that the presumption of ownership takes effect immediately!

And

afterward

that man came

before

Rabbi Hiyya.

And he

said

to him, Rabbi Hiyya: “

You exerted yourself and opened it for yourself.

Now

exert yourself and seal it!”

Because he had not maintained it for three years.