Bava Batra 7a (ז.) — the Talmud in English

The lower one said to the upper one:

“

I will build it.”

I will demolish the house and rebuild it at my own expense.

The upper one said:

I do not want you to demolish and rebuild it, because

I have no place

I have no place

to live in

in the interim.

The lower one said

to the upper one:

I will rent you

a place at my own expense,

a place

in which to live.

The upper one said:

Even if you rent a place for me, I do not agree to vacate my house, because

I will not undertake the trouble

I do not wish to undergo this inconvenience.

The lower one said to the upper one:

But

I cannot live there

I cannot live in my house because of your residence, which has sunk into the airspace of my residence.

The upper one said:

You can live in your house by

bending your belly

bending over as far as your belly,

and entering

and entering the house;

and

when you wish to leave,

bend your belly

bend over as far as your belly,

and exit

and leave.

Rav Hama said:

The upper one

is legally entitled to object!

He is not obligated to undertake the trouble of vacating his residence.

And this statement applies only

but all of this is only in a case

where

although the house has sunk,

the beams have not yet reached

the beams of the upper one’s floor have not reached

below ten

handbreadths into the airspace of the lower one’s residence.

But

if

they reached

they reached

the beams

the beams of the upper one’s floor

below ten

handbreadths into the airspace of the lower one’s residence,

he can say

the lower one can say to the upper one: Since your floor has reached

below ten

handbreadths into my residence, you can no longer prevent me from demolishing the building, for below ten handbreadths it is

my domain

it is my own domain,

and

again

I am not subject to you

I am no longer subject to you with regard to refraining from demolishing the building.

The early authorities explained the Gemara’s statement as follows: In any building with two stories, the owner of the lower story cannot demolish his residence, because he is subject to the owner of the upper story; if he demolishes his residence, the upper story will collapse. The Gemara teaches that if the lower one cannot live in his residence, as in the case under discussion, where the lower residence does not have a height of ten handbreadths, his servitude is nullified, and he may demolish his residence.

When the residence is rebuilt, each one builds his residence from his own funds, and the lower one is not required to pay the upper one for constructing the residence; see the note.

And this statement applies only

but this entire law applies only in a case

where they did not stipulate with one another

where the brothers made no stipulation with one another at the time of the division.

But

if

they stipulated with one another

if the brothers stipulated at the time of the division that if the building sank they would demolish it and rebuild it, then in such a case, if the building sank, even if the lower residence still had a height of ten handbreadths, nevertheless,

demolish and rebuild!

This law concerns a case in which they made a general stipulation that when the house sank they would demolish it and rebuild it, but they did not stipulate how far it would have to sink. Therefore, the Gemara continues by discussing how far the house must sink before the lower one can compel the upper one to demolish the building.

And if they stipulated with one another,

in this situation, in which one stipulated with the other that if the building sank they would demolish it,

how far

must the building sink before the lower one can compel the upper one to demolish the building?

The Rabbis said before Rabba, in the name of Mar Zutra, son of Rav Naḥman, who said in the name of

his father,

Rav Naḥman,

that the standard height of a building is the sum of half its length and half its width. For example, if a house is ten cubits long and twenty cubits wide, its proper height is fifteen cubits, which is half its length plus half its width. If the lower residence does not have this height, the lower one can compel the upper one to demolish the building.

As we learned in a Mishna:

One who undertakes to build a house for another must make

its height

the height of the house

equal to half its length and half its width!

Rabba said to them:

Did I

not tell you

that

you should not attribute empty vessels

to Rav Naḥman,

as though Rav Naḥman had said empty words devoid of reason, and Rav Naḥman did not say this. Rather,

this is what Rav Naḥman said:

Even though they stipulated with one another, the lower one can compel the upper one to demolish the residence only when the lower one cannot live in his residence

as people ordinarily live

in the manner in which people live.

And how much

what is the measure in this regard?

Rav Huna, son of Rav Yehoshua, said:

The lower residence must have a height sufficient

so that

the ceiling of the house will not impede the lower one from

entering

carrying on his shoulders

a bundle of reeds from Meḥoza

a medium-sized bundle of long reeds,

and then

turning around and walking with this bundle throughout the entire house. If his residence is lowered to the point that he cannot carry such a load inside the house, he can compel the upper one to demolish the building.

There was a certain man

an incident occurred involving a man

who was building a wall,

who built a wall in his courtyard, and this wall was

behind the window

a window

of his fellow

who was in his house in another courtyard.

His fellow said to him:

This wall that you built blocks the window of my house, and by doing so

you have darkened my home

you have darkened my residence.

The wall’s owner said to him:

The owner of the wall

I will seal this one for you here

I will seal this window of yours, which faces my wall,

and

opposite it

I will make for you

I will make for you

a window

another window

above my wall

above the wall that I built. [The house was higher than the wall, and it was possible to make a window at the height of the house, above the wall.]

The homeowner said to him:

I do not want you to make another window in my house, because by cutting out the window

you will weaken my wall,

you will undermine the strength of the wall of my house.

The wall’s owner said to him:

The owner of the wall said: If so,

I will demolish your wall,

I will demolish the entire upper section of the wall of your house

up to the place of the window,

up to the place where I wish to make the window,

and

from there

I will build it

a new wall,

and I will make a window for you in the building,

and I will make a window for you in the building

above my wall

above the wall that I built, and in this way the wall of the building will not be destroyed.

The homeowner said to him:

The homeowner said: I do not want you to rebuild the upper section of the wall, because

a wall

a wall

whose lower part is old

whose lower section is old

and whose upper part is new

and whose upper section is new

will not stand

it will not remain standing and will collapse, because the new mortar does not adhere properly to the old, dry mortar.

The wall’s owner said to him:

The owner of the wall said: If so,

I will demolish it

I will demolish the wall of your house entirely

down to the ground, and rebuild it

all of it anew,

and I will make a window for you in it

and make a window for you in it above my wall.

The homeowner said to him:

The homeowner said: I do not want this, because

one new wall

one new wall

within an entire old house

within an old house

will not stand

will not remain standing.

The wall’s owner said to him:

The owner of the wall said: If so,

I will demolish your entire house

I will demolish your entire house and rebuild it,

and build for you

and build for you

a window

a window

in the building

within the new building.

The homeowner said to him:

The homeowner said: I do not want this, because

there is no place in which to live

I have no place in which to live in the interim.

The wall’s owner said to him:

The owner of the wall

I will rent you

I will rent a place for you at my own expense,

a place

a place in which to live.

The homeowner said to him:

The homeowner

I will not undertake the trouble

I do not wish to trouble myself by moving elsewhere in the interim.

Rav Hama said: He is legally entitled to object

the homeowner is legally entitled to object, and he is not obligated to vacate his residence even if the other person rents another house for him.

And we raise an objection:

Is this not the same case!?

Did we not already learn this law above—that the homeowner is not obligated to vacate his house even if his neighbor rents another house in which he can live?

Why, then, is this stated again

why did they state this law again?

And we answer:

This teaches us

an additional novelty:

Even though he does not use it

the homeowner does not use the house

except

only to store

straw

straw

and wood

wood

alone

nevertheless, he can claim that it is burdensome for him to remove the wood and straw

Those two

there was an incident involving two

brothers

brothers

who divided among themselves

who divided their inheritance, and

one

of them

received a reception hall

received a fine reception hall as his portion of the inheritance ,

and

the

one received a garden

received a garden that was adjacent to the reception hall , and light from the garden entered the reception hall.

He went

and took

the one who received

as his inheritance the

garden

a garden,

and built a wall

in it

at the entrance of the reception hall

at the entrance to the teraklin.

The owner of the reception hall said to him:

This wall that you built blocks the light entering the reception hall, and thereby

you are darkening me:

you have darkened my reception hall.

The owner of the garden said to him:

Although this wall blocks the light from the reception hall, I am not obligated to demolish it, because

I built it on my own property:

I built this wall with permission on my property, and I am not obligated to ensure that you have light in your reception hall.

Rav Hama said: He has spoken correctly:

The owner of the garden is not obligated to demolish his dwelling. A person may build on his own property and darken his fellow’s dwelling, unless his fellow has established a ḥazakat ora, a presumption of right to light, for three years. In that case, his neighbor may not darken his dwelling. Therefore, in this case, since the owner of the garden built the wall immediately after the division, and the owner of the reception hall had not established a ḥazakat ora for three years, the owner of the garden is not obligated to ensure that the reception hall not be darkened.

The early authorities raised a difficulty from Rav Hama’s statement above, that one who builds a wall opposite a house window is obligated to demolish it; see the note.

Ravina said to Rav Ashi: How is this different

from the law stated by Rav Hama, that he is not obligated to demolish his wall,

from that which was taught

in a beraita, that

two brothers who divided

their father’s inheritance,

one of them took a vineyard field, and the other took a grain field

in which

that

he sowed with grain. The owner of the vineyard can say to the owner of the grain field: I cannot plow my entire field, for in order to plow the vines alongside the edge of the field, I require four cubits from the side so that the plow can enter [as we learned below, on 26a, that the size of a plow is four cubits]. Therefore,

the owner of the vineyard has

the right to bring his plow

four cubits into

the

grain field

of his brother, because it can be assumed

that they divided it with this understanding:

otherwise, the owner of the vineyard could not plow his field.

Ravina raised the difficulty: Why in this case do we say that they divided the property with the understanding that the owner of the vineyard would be able to bring his plow into the grain field, whereas in our case do we not say that they divided it with the understanding that the owner of the garden would not darken his brother’s reception hall?

He said to him

Rav Ashi said to Ravina:

There

in the case of brothers who divided a field and a vineyard, it refers to a situation

in which he paid the difference to him

: At the time of the division, the owner of the vineyard paid the owner of the field money for the difference between the value of the field and the value of the vineyard, because the vineyard is worth more than the field. Therefore, since he purchased the vineyard from the owner of the field, it may be said that, as part of the vineyard, the latter also sold him the right to bring the plow into the field. But this reasoning applies only to a sale; here, however, there was no sale, only a division of an inheritance.

We challenge this: It is clear from your words that only in the case described in the beraita did the owner of the vineyard pay the owner of the field the difference in price between a field and a vineyard. But this is difficult:

But here, what is meant by “they did not pay the difference to each other”?

Does this mean that here the owner of the reception hall did not pay the owner of the garden? That cannot be, because

are we dealing with fools

—with fools

that one took a reception hall and the other took a garden, and they did not pay the difference to each other?

One took a reception hall as his inheritance, while his brother took only a garden—

and they did not pay the difference to each other?

The owner of the reception hall did not pay the owner of the garden the difference in price between the reception hall and the garden? Surely the reception hall is worth more than the garden, because the reception hall is built, whereas the garden is not built. Rather, necessarily he paid him, and the difficulty returns: Why do we not say that he purchased it from him with the understanding that the owner of the garden would not darken the reception hall?

He said to him: Granted

even though

also

here

they paid the difference to each other

and the owner of the reception hall paid the owner of the garden the difference in price between the garden and the reception hall, nevertheless, he paid him only

the value of

the price of

the bricks, beams, and doors

the bricks and beams of the house, because the reception hall is superior to the garden in that it contains bricks and beams. But

the value of the air was not included in the difference!

Since there was no sale here except of the bricks and beams, and not of the airspace of the reception hall, the owner of the garden may again darken the reception hall, in accordance with Rav Hama’s view that as long as the owner of the window has not established a ḥazakat ora for three years, his neighbor may darken his dwelling.

We challenge this:

And let him say to him

the owner of the reception hall should say to the owner of the garden that this is a transaction made in error: The money that I initially gave you

at the outset

for the reception hall was given because it was only because

you divided the reception hall to me

you gave me a reception hall as my portion, whereas

now you have made me

the reception hall into an

indruna

a dark room.

Rav Shimi bar Ashi said:

His claim is not valid, and this is not a transaction made in error. Granted, if the division had been arranged so that one received a reception hall with light and airspace, while his brother received a garden, then the owner of the reception hall could claim that the transaction was made in error, since it turns out that he does not have a reception hall with light and airspace. But this is not the case. Rather, at the time of the division,

he merely divided it by its name

he divided the property according to something called “reception hall.” Since even after the reception hall was darkened it is still called a “reception hall,” there is no claim that the transaction was made in error, for he had a reception hall and he still has a reception hall. As we learned in a beraita:

Is it not taught

that we learned:

One who says

to his fellow: I sell you an area of

a bet kor [

thirty se’a ]

of earth, even though

the area that he sold him

is only

the size of

a letakh

half a kor , and the purchaser knows that the householder owns land measuring half a kor that is called “a bet kor,”

they have completed

and the sale is valid, because

he did not sell him

an area measuring a bet kor

but

land that

merely

is called “a bet kor,” even though it does not measure a bet kor.

And it is that which is called

this land is indeed called

“a bet kor”

Similarly, one who says to his fellow:

I sell you an orchard

is understood as saying that

even though it contains no pomegranates,

they have completed the sale.

The sale is valid, because

he did not sell him

an orchard with fruit

but

land that

merely

is an orchard,

and it is that which is called

this land is indeed called

an orchard.

Similarly, one who says to his fellow:

I sell you a vineyard

and the purchaser knows that the owner of the vineyard has a field without vines, and nevertheless this field is called “a vineyard,”

even though it contains no vines, they have completed the sale

and the sale is valid, because

he did not sell him

a vineyard with vines

but

he sold him land that

merely

is called “a vineyard,”

and it is that which is called

this land is indeed called

a vineyard.

It is apparent from the words of the beraita that although the purchaser intended to buy a vineyard with vines, or an orchard with pomegranates, and the like, it is nevertheless not a transaction made in error, because in the end he received something called “a vineyard” or “an orchard,” and the like. Accordingly, here too, although the owner of the reception hall intended to pay for an illuminated reception hall, this is not a transaction made in error, because in the end he received something called “a reception hall.”

We reject this:

Are the cases comparable?

The cases in the beraita are not similar to our case. For

there

in the cases taught in the beraita,

the seller can say to him

the

seller can say to the purchaser: “I sold you merely”

I intended only to sell you something called “a vineyard” or “an orchard,” and the like; I did not intend to give you a vineyard with vines or an orchard with pomegranates. But

here

the owner of the garden cannot say to the owner of the reception hall, “I sold you only the name ‘reception hall,’ and not an illuminated reception hall,” because

the owner of the reception hall can say to him

the owner of the reception hall can say to the owner of the dwelling: If you darken the dwelling, this will be a transaction made in error, because

with this understanding they divided it

what I took the reception hall with was the understanding

that I would dwell in it

that I would live in this reception hall,

just as

our ancestors dwelled in it

just as our ancestors lived in it. Since our ancestors lived in an illuminated reception hall, if you darken the reception hall, this will be a transaction made in error. This is a difficulty against Rav Hama, who said that the owner of the garden may darken the reception hall.