Bava Batra 6a — the Talmud in English

Or perhaps,

or maybe, since it is established for us that a person does not pay within his time, if so

in a place

where there is

a presumption

that undermines the reliability of his words,

we do not say

that the migo of

“What do I have to lie?” will avail him.

And the Gemara attempts to resolve the question from our Mishna:

Come and hear,

come and hear a proof from what we learned: Up to four cubits, since he can compel him, he is

presumed to have given

his share,

until he brings

the claimant

proof that he did not give.

And the Gemara clarifies:

What are the circumstances?

How is this stated?

If you say

that it is referring to a case

where he sued him after the time,

after he completed the construction of the wall,

and he said to him

the defendant:

“I paid you at my time,”

upon completing the height of four cubits, then

it is obvious,

that he is certainly believed concerning having given!

Rather, is it not

referring to a case

where he said to him,

the defendant said to him:

“I paid you within my time,”

before you completed the construction of four cubits. And from the fact that he is believed,

it follows

that it is proven from here that

even in a place

where there is against him

a presumption

that a person is not accustomed to pay within his time,

we say

that he is believed by virtue of the migo of

“What do I have to lie?”

for, had he wished, he could have claimed that he paid after his time arrived.

And the Gemara rejects this: There is no proof from the first clause of our Mishna, because

here it is different,

the law of the Mishna here is different,

for each course and each course has its time!

This is not called “within his time,” because each row that he builds is its time for receiving his payment for it. If so, this is not within his time, but after his time. And the uncertainty cannot be resolved from here.

And the Gemara attempts to resolve it from the latter clause of our Mishna:

Come and hear: From four cubits and above, they do not obligate him

to participate in the expenses. However, if

his fellow rested against him

his

another wall,

he is presumed not to have given his share, even though he became obligated in it when he rested his wall against it and he claims that he paid,

until he brings proof that he gave.

And again the Gemara clarifies:

What are the circumstances,

how is it stated

? If you say,

that it is referring to a situation

where he sued him after his time, and he said

to him, the defendant said to him,

“I paid you at my time,”

upon completion of the construction of the wall, when I knew how much I had to pay,

why not!?

Why should he not be believed to say that he paid, since at its time, according to everyone, he is believed!

Rather, is it not

referring here to a situation

where he said to him

“I paid you within my time,”

and even though he has a migo, that he could have claimed, “I paid you after my time,” nevertheless, he is not believed.

It follows,

that it is proven from here that

in a place

where there is against him

a presumption, we do not say

that the migo of

“What do I have to lie?” will avail him.

And the Gemara rejects this:

Here it is different,

the law here is different, because

he says

the defendant says to himself: Why should I pay?

Who can say

who will say

that the Rabbis will obligate me,

that the Sages will obligate me to pay? Perhaps they will exempt me! Therefore, he is presumed not to have given.

And again the Gemara attempts to resolve the question from a Mishna in tractate Shevuot [38b]:

Rav Aḥa, son of Rava, said to Rav Ashi: Come and hear:

One person said to his fellow:

“I have a maneh in your possession,”

and you are obligated to give it to me.

He said to him

the defendant, before two witnesses:

“Yes,”

indeed so.

The next day, he said to him

again:

“Give it to me.” If he said

the defendant: I already

“gave it to you!”

he is

exempt

from paying, even though yesterday he admitted before witnesses. For it is possible that he paid him from yesterday until now, and this is not denying his first admission. But if he answered him,

“You have nothing in my possession,

at all,” since I am not obligated to you at all, then he is

liable

to pay.

And Rav Aḥa, son of Rava, analyzes the words of the Mishna:

Is it not

the intention of the Mishna to say as follows:

When he says

“I gave it to you,”

it is referring to a case

where he said to him

the defendant

“I paid you at my time.”

Whereas when he says

“You have nothing in my possession,”

it is referring to a situation

where he said to him, “I paid you within my time.”

And it teaches,

and we learned concerning this:

liable.

It follows,

then it is proven from here that

in a place of a presumption we do not say,

we do not say the migo of

“What do I have to lie?”

and we do not believe him in this.

And the Gemara rejects this:

No! What is

the meaning of

“You have nothing in my possession,”

that he claims

“It never happened”?

That is, he is now denying the debt itself. And therefore he is liable to pay, because

the Master said,

the tanna:

“Anyone who says, ‘I did not borrow,’ is considered like one who says, ‘I did not pay.’”

For one who did not borrow, it is clear that he does not pay. And since there are witnesses here before whom he admitted the loan, and he himself admitted that he did not pay [by saying, “I did not borrow”], therefore he is liable. But had he claimed, “I paid,” he would have been believed, even if the loan itself had been in the presence of witnesses. For this is how the halakha was ruled: One who lends money to his fellow in the presence of witnesses does not need to repay him specifically in the presence of witnesses.

We learned in the Mishna [5a]: Reuven and Shimon had two courtyards, one alongside the other, and Reuven built a wall between the two courtyards; Shimon is obligated to participate with him in the expenses of the wall. But if Reuven wished to build a wall higher than four cubits, Shimon is not obligated to participate with him in the additional expenses that he incurs for the height of the wall—

But if, after Reuven built a wall higher than four cubits,

Shimon rested

Shimon

another wall against it,

higher than four cubits, so that he could place a ceiling upon the two walls, through this Shimon revealed his intention that he desired the height of the wall, and therefore

they impose the entire amount upon him.

Shimon is obligated to participate also in the expenses that Reuven incurred for the height of the wall, even if he has not yet built a ceiling upon the walls.

Rav Huna said,

if

Shimon rested

his wall only

for half

opposite half of the first wall that Reuven built—for example, the length of the wall that Shimon built reached only half the length of the wall that Reuven built, or the height of Shimon’s wall did not reach the height of Reuven’s wall—this is as though he

rested it against the whole

opposite the entire first wall, and Shimon is obligated to participate in all the expenses of the first wall, even for the section opposite which he did not build.

The reason for this law is that, since Shimon began to build a wall opposite the wall that Reuven built, although the length of the wall is not like Reuven’s wall, in the end he will finish and build opposite the entire length of the first wall, and place a ceiling above the two walls; therefore, from now he is obligated to participate in all the expenses of the first wall. And likewise, in a situation where Shimon’s wall was not as high as Reuven’s wall, one can say that in the end he will raise his wall and place a ceiling above the two walls. It is also possible that he will build a ceiling upon the lower wall and make an attic above it, and it follows

[unclear: the source text is corrupted] here it is necessary to say that in the end he will use the entire height of the wall that Reuven built, and for this reason he is from now obligated to participate in the expenses of the entire height of the first wall.

And although he has not yet placed a ceiling upon it, nevertheless he is obligated to participate, as we learned in the Mishna.

And Rav Naḥman said,

if the second wall is not opposite the entire first wall, Shimon is not obligated to participate in all the expenses of the first wall, but

for whatever he rested against, he rested against

for the section opposite which he rested his wall, he is obligated to participate, since in the end he will rest a ceiling upon it and use it, whereas

for whatever he did not rest against, he did not rest against

for the section opposite which he did not build, he is not obligated to participate.

And Rav Huna concedes in the case of a corner and a joining-piece

if Shimon’s house was adjacent to the wall that Reuven built, and afterward Shimon added a small extension to his house opposite Reuven’s wall, while this extension was distant from the wall,

and from now Shimon can use the wall that Reuven built if he places a ceiling between the extension that he added to his house and Reuven’s wall [see the illustration]; in this he concedes

that [illustration 7] Rav Huna does not obligate him to participate in all the expenses of the height of the first wall, but only for the section of the wall opposite which he built, because in this case one cannot say that in the end he will build more adjacent to the wall, since such a construction is not made to continue further .

And Rav Naḥman concedes

although he holds that Shimon is not obligated to participate in the entire wall, but only in the section opposite which he built his wall, he concedes that if Shimon built a wall lower than Shimon’s wall, and made in the wall a sign proving that he intends to place a ceiling upon this wall, such as

with an afreiza

that he placed a thick beam upon which they customarily place the ceiling , or

if

he revealed his intention that he wishes to make a ceiling

with a kavata

of beams,

that he made holes in the wall and lined the holes with wood, in order to rest the ceiling beams in these holes, in this case they obligate him to participate in the expenses of the entire first wall, because after he places a ceiling upon the lower wall, in the end he will raise the wall above the ceiling and build upon the ceiling an attic up to the height of Reuven’s wall.

We learned in the Mishna: Reuven built a wall higher than four cubits; Shimon is not obligated to participate with him in the expenses of the height. But if Shimon rested a wall opposite Reuven’s wall, from then he is obligated to participate with him in the expenses of the height. And if Shimon claimed that he had already paid Reuven his share at the time of the construction, he is not believed.

Rav Huna said,

Reuven built a wall higher than four cubits, and he carved at the top of the wall, on the side facing Shimon’s courtyard,

holes,

holes in which to place ceiling beams; and Shimon claims to Reuven: I participated with you in the expenses of the wall, for if not, you would not have prepared holes in the wall for me upon which I could later rest ceiling beams,

there is no presumption

and Shimon is not believed to make this claim,

and even though

Reuven exerted additional effort and

made for him

in those holes

protective boards

thick boards that are placed in the holes to protect the beams, nevertheless this effort of Reuven does not constitute proof that Shimon participated with him in the expenses of the wall,

for he says to him

Reuven says to Shimon: The fact that I prepared holes for you in which to place beams was not because you assisted me in building the wall, but because

I said, when you appease me,

that when you wish to place beams upon the wall and participate with me in the expenses of the height of the wall, I will not then need to make holes in the wall, for

it should not be damaged

so that it should not be spoiled,

the foundation,

the foundations of the wall.

And the Gemara now proceeds to discuss the matter of “presumption of usage rights.”

The subject of this presumption is that when Reuven uses his fellow’s house or courtyard, and his fellow sees and remains silent, this silence constitutes proof that Reuven purchased from him the right of use, or that he gave him this right as a gift; and thereafter his fellow can no longer protest against his using his courtyard. The Rishonim disagreed concerning the details of this presumption, as will be set out in the note .

Rav Naḥman said: He established a presumption for thin beams,

Reuven, who was accustomed to rest thin beams upon Shimon’s wall, while Shimon remained silent and did not protest against him—indeed, from his silence we learn that Reuven acquired from him the right to place his beams upon his wall, or that he gave him this right as a gift; therefore, Reuven established a permanent right of use, and Shimon can no longer protest against him . But this presumption of his applies only concerning resting thin beams; but by the fact that he placed thin beams, still

he did not establish a presumption for beams.

There is no presumption here to place heavy beams upon the wall. And his fellow can prevent him from placing heavy beams upon the wall.

Can he claim that he purchased the wall? The early authorities disputed what the law is if Shimon claims that the reason he placed his beams upon Reuven’s wall is not that he purchased a right of usage from Reuven, but rather that he purchased from Reuven half of the substance of the wall: whether he is believed to make this claim or not. And the practical consequence is if the wall fell: whether Reuven has a share in the place of the wall. The view of the Ramban is that he is believed. Just as one who sits on land for three years and eats its produce acquires it, so too one who places beams on a wall acquires it, and you have no greater eating than this. And this is also the view of the Rosh, except that the Rosh wrote this for another reason: “For presumably, when he purchased from him permission to rest [beams] upon his wall, he purchased from him the entire wall, for half of it to be his.” But the early authorities brought in the name of “Rabbi Yehuda HaNasi, may his memory be for a blessing, the Al-Barceloni, in the name of a gaon,” that he holds that he is not believed to claim that he purchased the wall, even if he maintained this usage for three years. And if Reuven maintained

to

place

heavy beams

on his fellow’s wall, and his fellow did not protest against him, then

this presumption

this presumption is also effective

to

place

thin beams

thin beams, for if he was given a right of usage for heavy beams, kal va-chomer he was given this right for thin beams.

Rav Yosef said,

even if

he established a presumption for thin beams,

to place thin beams,

he established a presumption

also

for heavy beams,

to place heavy beams. For one who purchases from his fellow a right of usage in his courtyard does not purchase this right by halves, and since we see that he purchased a right for thin beams, necessarily he also purchased a right for heavy beams.

There are those who say —

there are those who said in the name of Rav Naḥman a different ruling. For

Rav Naḥman said

that if

he established a presumption for thin beams,

for thin beams,

he established a presumption

also

for heavy beams,

for heavy beams; and likewise, if he maintained

for heavy beams, he established a presumption for thin beams!

Rav Naḥman said: He established a presumption for netapei,

Reuven, whose house was adjacent to Shimon’s courtyard, and rainwater was dripping from the roof of Reuven’s house into Shimon’s courtyard. And Shimon remained silent and did not protest against him. Reuven therefore has a presumption for this usage in Shimon’s courtyard, and Shimon can no longer protest against him. And included in this presumption is that

he established a presumption

also

for shafkhei,

if Reuven wishes to make a gutter so that all the rainwater will flow to one place in Shimon’s courtyard, he is permitted to do so, for it is preferable for the owner of the courtyard that all the water flow to one place rather than drip from the entire roof over a broad area of his field—

But if from the outset there was a gutter on Reuven’s roof, and the water dripped from the gutter into Shimon’s courtyard, and Shimon did not protest, and

Reuven established a presumption

in the courtyard

with regard to

the matter of

shafkhei,

through this presumption he still

did not establish a presumption for netapei

for water flowing without a gutter. And if Reuven removes the gutter, Shimon may protest and object to the water on the roof leaking into his courtyard. For the entire presumption that he established is only for the gutter, since the gutter is more convenient for the owner of the courtyard.

And Rav Yosef said: Even

if Reuven

established a presumption

in Shimon’s courtyard

for shafkhei

for water poured from the gutter, then through this presumption

he established a presumption

also

for netapei

for water poured without a gutter!

There are those who say,

there are those who said a different ruling in the name of Rav Naḥman, for

Rav Naḥman said,

if

Reuven established a presumption

in Shimon’s courtyard

for shafkhei

that the water is poured from his gutter into Shimon’s courtyard, through this presumption

he established a presumption

also

for netapei

for water poured without a gutter. And likewise, if he maintained a presumption

for netapei, he established a presumption

also

for shafkhei. But for a tzarifa de-orbanei,

if Reuven made a sloping roof over his house and covered it with willow branches, and the water drips from this roof into the courtyard, for this

he did not

Reuven establish a presumption in Shimon’s courtyard, and Shimon may protest against him and object, because since this roof is sloping, the water drips from it with great force and prevents usage beneath the place where it drips. Therefore, although Reuven established a presumption concerning water dripping from an ordinary roof, concerning water dripping from this roof he did not establish a presumption.

Rav Yosef said: Even

if Reuven made the roof of his house like a

tzarifa de-orbanei

a sloping roof covered with willow branches, his presumption is also effective for this, and Shimon cannot protest against him; and thus

Rav Yosef acted

Rabbi Yosef issued a practical ruling in

a case

that came before him, involving one who made the roof of his house like a

a

tzarifa de-orbanei.