Bava Batra 6a (ו.) — the Talmud in English

Or perhaps,

or maybe, since we hold as an established presumption that a person does not repay within the time assigned to him, then

where

there is

a presumption

that undermines the credibility of his statement,

we do not say

that the migo of

“What could I have lied about?” is effective for him.

The Gemara attempts to resolve the question from our Mishna:

Ta shma,

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

presumed to have paid

his share,

until

the claimant

brings proof that he did not pay.

The Gemara clarifies:

What are the circumstances?

How is this case understood?

If you say

that it is referring to a case in which

he claimed against him after the time,

after he completed building the wall,

and he said to him

the defendant:

“I repaid you on time,”

when the wall reached a height of four cubits, then

it is obvious

that he is deemed credible in saying that he paid!

Rather, is it not

referring to a case in which

he said to him,

the defendant said to him:

“I repaid you within the time,”

before you completed the construction of four cubits? And from the fact that he is deemed credible,

apparently

it is proven from here that

even where

there is against him

a presumption

that a person is not accustomed to repay within the time assigned to him,

we say

that he is deemed credible by virtue of the migo of

“What could I have lied about?”

as, had he wished, he could have claimed that he paid after the time arrived.

The Gemara rejects this proof from the first clause of our Mishna, because

this case is different,

the law in the Mishna here is different,

as each course and each course has its own time!

This is not called repayment within the time, because each row that he builds is itself the time at which he is to receive payment for it. Therefore, this is not within the time, but rather after its time. The question cannot be resolved from here.

The Gemara attempts to resolve the question from the latter clause of our Mishna:

Ta shma: From four cubits and above, he is not compelled

to participate in the expenses. However, if

his fellow leaned

his

another wall against it,

he is presumed not to have paid his share, even though he became liable for it when he leaned his wall against it, and he claims that he paid,

until he brings proof that he paid.

The Gemara again clarifies:

What are the circumstances,

how is this case understood

? If you say

that it is referring to a situation in which

he claimed against him after its time, and he said

the defendant said to him:

“I repaid you on time,”

when the construction of the wall was completed, once I knew how much I had to pay,

why not!?

Why should he not be deemed credible in saying that he paid? After all, when it was due, everyone agrees that he is deemed credible!

Rather, is it not

referring to a situation in which

he said to him

“I repaid you within the time,”

and even though he has a migo, as he could have claimed, “I repaid you after the time,” nevertheless, he is not deemed credible.

Apparently,

it is proven from here that

where

there is against him

a presumption, we do not say

that the migo of

“What could I have lied about?” is effective.

The Gemara rejects this proof:

This case 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 Sages will obligate me,

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

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

Rav Aḥa, son of Rava, said to Rav Ashi: Ta shma:

One person said to another:

“I have a hundred dinars in your possession,”

and you are obligated to give it to me.

He said to him

the defendant, in the presence of two witnesses:

“Yes,”

indeed.

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 the previous day he acknowledged the debt before witnesses. For it is possible that he repaid him between the previous day and now, and this does not constitute a denial of his initial acknowledgment. But if he answered him,

“You have nothing in my possession,”

meaning, I am not liable to you at all, he is

liable

to pay.

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

Is it not

the Mishna’s intention to say as follows?

When he says

“I gave it to you,”

it is referring to a case in which

he said to him

the defendant

“I repaid you on time.”

But when he says

“You have nothing in my possession,”

it is referring to a situation in which

he said to him, “I repaid you within the time.”

And it teaches,

and we learned with regard to this:

liable.

Apparently,

it is therefore proven from here that

where there is a presumption, we do not say

that the migo of

“What could I have lied about?”

and we do not believe him in this matter.

The Gemara rejects this proof:

No! What is

the meaning of

“You have nothing in my possession,”

which he claims is

“Nothing of the sort ever happened”?

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

the Master said,

the tanna:

Anyone who says, “I did not borrow,” is considered as though he said, “I did not repay.”

For it is obvious that one who did not borrow did not repay. And since there are witnesses before whom he acknowledged the loan, and he himself admitted that he did not repay it [by saying, “I did not borrow”], he is therefore liable. But had he claimed, “I repaid,” he would have been deemed credible, even if the loan itself had taken place in the presence of witnesses. For this is the established halakha: One who lends money to another in the presence of witnesses need not have him repay specifically in the presence of witnesses.

We learned in the Mishna [5a]: If Reuven and Shimon had two courtyards adjacent to one another, 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 wishes to build a wall higher than four cubits, Shimon is not obligated to participate with him in the additional expenses he incurs for the height of the wall—

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

Shimon leaned

Shimon

another wall against it,

higher than four cubits, so that he could place a ceiling over the two walls, Shimon thereby demonstrated that he desired the height of the wall, and therefore

they impose all of it upon him.

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

Rav Huna said,

if

Shimon leaned

his wall only

for half

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

leaned it against the whole

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

The reason for this law is that, since Shimon began building a wall opposite the wall Reuven built, even though his wall is not as long as Reuven’s wall, he will ultimately complete it and build opposite the entire length of the first wall, and place a ceiling over the two walls. Therefore, from now on he is obligated to participate in all the expenses of the first wall. Similarly, when Shimon’s wall was not as high as Reuven’s wall, one can say that he will ultimately raise his wall and place a ceiling over the two walls. It is also possible that he will build a ceiling over the lower wall and construct an attic above it, with the result that

it is necessary to say that ultimately he will use the entire height of the wall Reuven built, and for that reason he is now obligated to participate in the expenses of the full height of the first wall.

And although he has not yet placed a ceiling over it, he is nevertheless 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 rather

for whatever he leaned against, he leaned against

the section opposite which he leaned his wall, he is obligated to participate, since he will ultimately lean a ceiling upon it and use it; whereas

for whatever he did not lean against, he did not lean against

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

And Rav Huna concedes with regard to a corner and a projection

if Shimon’s house was adjacent to the wall Reuven built, and afterward Shimon added a small extension to his house opposite Reuven’s wall, with this extension set back from the wall,

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

that [Illustration 7] Rav Huna does not obligate him to participate in all the expenses for 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 he will ultimately build further alongside the wall, as such a construction is not made to be extended further.

And Rav Naḥman concedes

although he maintains 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 Reuven’s wall and made a sign in the wall demonstrating that he intends to place a ceiling upon it, such as

with an afreiza

a thick beam upon which it is customary to place the ceiling, or

if

he demonstrated that he wishes to make a ceiling

with a kavata

of beams,

by making holes in the wall and lining the holes with wood, so that the ceiling beams could rest in those holes—in this case he is obligated to participate in the expenses of the entire first wall, because after he places a ceiling upon the lower wall, he will ultimately raise the wall above the ceiling and build an attic upon the ceiling up to the height of Reuven’s wall.

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

Rav Huna said,

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

recesses,

holes in which to place ceiling beams, and Shimon says to Reuven: I participated with you in the expenses of the wall, for otherwise you would not have prepared holes in the wall upon which I could rest ceiling beams in the future,

it is not a presumption

and Shimon is not deemed credible in making this claim,

and although

Reuven exerted extra effort and

made for him

in those holes

protective boards

thick boards 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,

as he said to him

Reuven said 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 thought, when you appease me,

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

the foundation should not be damaged,

so that it will not deteriorate,

the foundation,

the foundations of the wall.

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

The nature of this presumption is as follows: When Reuven uses his fellow’s house or courtyard, and his fellow sees this and remains silent, this silence constitutes evidence that Reuven purchased from him the right of use, or that he granted him this right as a gift. Consequently, his fellow can no longer protest his use of the courtyard. The Rishonim disputed the details of this presumption, as will be explained in the note.

Rav Naḥman said: If he established a presumption with regard to thin beams,

if Reuven was accustomed to lean thin beams against Shimon’s wall, and Shimon remained silent and did not protest, we learn from his silence that Reuven acquired from him the right to place his beams upon his wall, or that he granted him this right as a gift. Therefore, Reuven established a permanent right of use in this matter, and Shimon can no longer protest his use. But this presumption applies only with regard to leaning thin beams; by placing thin beams, he has still

not established a presumption with regard to heavy beams.

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

And if Reuven maintained

to

place

heavy beams,

heavy beams on another’s wall, and the other did not protest against him, then

he acquired

this established right, which is effective also

to

place

thin beams,

since if he was granted the right of usage for heavy beams, all the more so he was granted this right for thin beams.

Rav Yosef said:

Even if he

acquired the right for thin beams

to place thin beams,

he acquired the right

also

for heavy beams

to place heavy beams. For one who purchases from another a right of usage in his courtyard does not purchase this right in separate portions; and since we see that he purchased the right for thin beams, it necessarily follows that he also purchased the right for heavy beams.

There are those who say

—there are those who stated a different halakha in the name of Rav Naḥman.

For Rav Naḥman said

that if

he acquired the right for thin beams

for thin beams,

he acquired the right

also

for heavy beams

for heavy beams; and likewise, if he established a right

for heavy beams, he acquired the right for thin beams!

Rav Naḥman said: If he acquired the right for dripping,

Reuven’s house was adjacent to Shimon’s courtyard, and rainwater dripped from the roof of Reuven’s house into Shimon’s courtyard. Shimon remained silent and did not protest against him. Reuven therefore has an established right of usage in this courtyard, and Shimon can no longer protest against him. Included in this established right is that

he acquired

also

for pouring,

if Reuven wishes to make a gutter through which all the rainwater will flow to one place in Shimon’s courtyard, he is permitted to do so, since 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 there was originally a gutter on Reuven’s roof, and the water dripped from the gutter into Shimon’s courtyard, and Shimon did not protest, and

Reuven acquired

a right in the courtyard

with regard

to

pouring,

through this established right he has still

not acquired the right for dripping

for water flowing without a gutter. If Reuven removes the gutter, Shimon may protest and object to the water on the roof leaking into his courtyard, since the entire right that Reuven established was only for a gutter, which is more convenient for the owner of the courtyard.

And Rav Yosef said: Even

if Reuven

acquired

a right in Shimon’s courtyard

for pouring,

for water poured from the gutter, through this established right

he acquired

also

for dripping,

for water poured without a gutter!

There are those who say

that a different halakha was stated in the name of Rav Naḥman:

For Rav Naḥman said,

if

Reuven acquired

a right in Shimon’s courtyard

for pouring,

where the water pours from his gutter into Shimon’s courtyard, through this established right

he acquired

also

for dripping,

for water poured without a gutter. And likewise, if he established a right

for dripping, he acquired the right

also

for pouring; but for a tzrifa de’urbani,

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

establish a right in Shimon’s courtyard, and Shimon may protest and object. Since this roof is sloped, the water drips from it with great force and prevents use of the area beneath the place where it drips. Therefore, although Reuven established a right with regard to water dripping from an ordinary roof, he did not establish a right with regard to water dripping from this roof.

Rav Yosef said: Even

if Reuven made the roof of his house like a

tzrifa de’urbani,

a sloping roof covered with willow branches, his established right is effective for this as well, and Shimon cannot protest against him. And so

Rav Yosef acted:

Rabbi Yosef issued a practical ruling in an

incident

that came before him involving someone who made the roof of his house like

a

tzrifa de’urbani.