Bava Kamma 20b (כ:) — the Talmud in English

Ultimately,

he did derive benefit

after all, he benefited].

He said to him

Rami bar Ḥama said to Rav Ḥisda:

It is a Mishna

this is a Mishna, meaning: this law is derived from the Mishna.

Rav Ḥisda asked Rami bar Ḥama:

Which Mishna

which Mishna?

He said to him

Rami bar Ḥama said to Rav Ḥisda: I will answer you

once you serve me

after you serve me.

Rav Ḥisda took

the

scarf

of Rami bar Ḥama and

wrapped it for him

folded his scarf for Rami bar Ḥama in order to serve him in this manner.

He said to him

Rami bar Ḥama said to Rav Ḥisda: It is our Mishna, in which we learned: “

If you benefited, you pay what you benefited,”

and he proceeded to explain it.

Rava said

about Rami bar Ḥama:

How untroubled and unconcerned is the man whose Master assists him

how secure and confident, with no need to fear any misfortune, is one whom the Holy One, blessed be He, assists; in other words, Rami bar Ḥama had heavenly assistance,

for although

Rav Ḥisda’s question

was not analogous to the Mishna,

nevertheless,

Rav Ḥisda accepted it from him

and did not reject Rami bar Ḥama!

For

this

case in our Mishna:

this one

the owner of the animal

benefited

from his animal’s eating,

and this one—

the owner of the barley—

was diminished by

the benefit of the owner of the animal, since the animal ate his barley—

but

if

this

case of Rav Ḥisda:

this one

the resident

benefited, and

if

this one—

the owner of the courtyard, who had not intended to rent out his courtyard—

was not diminished,

and Rav Ḥisda’s entire uncertainty is only because this one was not diminished; but where this one benefits and that one is diminished, it is obvious that he is liable to pay for his benefit.

And Rami bar Ḥama,

who brought proof from our Mishna, held:

Ordinarily, produce in the public domain

as in the case of our Mishna—

its owner declares it ownerless

and it follows that he is not diminished.

The Gemara resolves the uncertainty from the following

we learned

in Bava Batra 2b:

One who surrounds his fellow on three sides,

meaning: Reuven has three fields on three sides of Shimon’s field, and his three fields were fenced on the outside, adjacent to the public domain—

Reuven went

and fenced

the

first

field, between it and Shimon’s field,

and

likewise

the second, and

likewise

the third;

still,

he is not compelled

Shimon—to participate in the expenses of the fence, since he does not benefit from Reuven’s fences, as the fourth side remains open to the wind.

It follows that

if

Reuven also fenced the

fourth field—which was also his property, and Shimon had already benefited from the fence, since his field was now fenced on all sides—

side—which he also owned, and Shimon had now benefited from the fence, since his field was enclosed on all its sides—

he is compelled

Shimon, the one surrounded, to participate in the expenses of the entire fence—

Thus,

infer from here: this one

Shimon, the one surrounded—

benefited, and this one

Reuven, who surrounded him—

was not diminished

on Shimon’s account, since even without Shimon he would have had to fence his fields; nevertheless, Shimon

is liable

to pay for his benefit.

And we reject this:

It is different there, for he said to him

Reuven said to Shimon:

You caused me an additional enclosure

your field, which lies among my fields, caused me to construct an additional enclosure; meaning: Reuven is diminished on account of Shimon, for had Shimon not had a field within his fields, Reuven would have sufficed with the outer fences that he constructed. It follows that this one benefits and that one is diminished.

Come and hear

from the continuation of that Mishna, which indicates that “one benefits while the owner is not diminished” is exempt:

For we learned there:

Rabbi Yosei said: If the one surrounded arose

Shimon, after Reuven had fenced three sides of Shimon’s field,

and fenced

on his own

the

side

fourth

of his field,

they impose upon him—

upon Shimon—

the entire amount, meaning: he must participate in the expenses of the first three fences, because he demonstrated that he wants fences around his field.

It follows that

the reason is that the one surrounded fenced

then they compel him to participate,

but

if

the

one who surrounded

fenced the fourth side—for example, he acquired an additional field on the fourth side and fenced it—

he is exempt

Shimon, the one surrounded, from participating in the expense of the fences. Although he benefited from Reuven’s fences, he is nevertheless exempt when Shimon did not demonstrate that he wanted the fences—

Thus,

infer from here: this one

Shimon

benefited, and this one

Reuven

was not diminished, [and he is] exempt.

In other words, this is certainly the point of dispute between the Sages, who obligate Shimon when Reuven fenced the fourth side, and Rabbi Yosei, who exempts him [when he did not demonstrate his desire]. The Sages hold that this is a case of “one benefits and the other is diminished,” since Shimon caused him an additional enclosure, whereas Rabbi Yosei holds that this is not considered a sufficient diminution to obligate Shimon for his benefit. But according to everyone, “one benefits while the owner is not diminished” is exempt. And we reject this: “In fact, ‘one benefits while the owner is not diminished’ is liable,” and it is different there

And we reject this: In fact, one who benefits while the other does not suffer a loss is liable, but

with regard to the fence, where Shimon is not required to participate even though he benefited, because

he said to him

Shimon said to Reuven:

For me, a one-zuz guard is sufficient

I cannot construct an expensive stone fence like the one you built; a fence of thorns costing only one zuz is sufficient for me. In other words, lesser and less expensive protection is enough for me to separate my property from yours, and I do not wish to participate in the expense of an expensive stone fence.

Come and hear

from a Mishna in Bava Metzia 117a, which indicates that “one benefits while the owner is not diminished” is exempt:

As we learned:

the

house and upper story belonging to two people

Reuven owned the house and Shimon owned the upper story

collapsed,

and

the owner of the upper story said to the owner of the house to rebuild

his house so that he could build the upper story upon it,

but he—

the owner of the house—

does not wish

to build:

The owner of the upper story builds

a house and lives in it

the house

up to the lower ceiling, and

the owner of the upper story lives

the owner of the upper story

inside it,

until he gives him

the owner of the house gives the owner of the upper story

his expenses

that he spent on constructing the house. The owner of the upper story then leaves the house and builds his upper story.

From here the Gemara derives that “one benefits while the owner is not diminished” is exempt, for:

It is his expenses that the owner of the house is obligated to pay him; but not rent.

That is, the owner of the house must pay the owner of the upper story all his expenses, and he does not deduct from them rent for the time the owner of the upper story lived in his house. Thus

infer from here:

This one—

the owner of the upper story—

benefited

from living in the house, since otherwise he would have had to rent another dwelling,

and

if

this one—

the owner of the house—

was not diminished,

since he had no interest whatsoever in building the house,

the one who benefited

is exempt.

And we reject this:

It is different there

with regard to the house and upper story, where the owner of the upper story does not pay for living in the house because

the house is subordinated to the upper story

the house is encumbered to the upper story, to build it upon the house and support it; therefore, the owner of the upper story has the right to live in the house.

Come and hear

from the continuation of that Mishna:

Rabbi Yehuda—

who disagreed with the Sages, who held that the owner of the upper story need not pay the owner of the house rent—

says:

Even this one

the owner of the upper story

lives in his fellow’s courtyard

the owner of the house

without his knowledge,

he must pay him rent.

Thus,

infer from here: “

one benefits while the owner is not diminished,”

is liable.

In other words, the Sages and Rabbi Yehuda certainly disagree on this point: according to the Sages, he is not required to pay rent because the house is subordinated to the upper story, whereas Rabbi Yehuda disputes this reasoning. But according to everyone, “one benefits while the owner is not diminished” is liable.

And we reject this:

It is different there

with regard to a new house in which the owner of the upper story lived, for he is liable to pay

because

the owner of the house suffered the

blackening of the walls

the blackening of the walls, since initial use of a new house blackens and diminishes the walls.

But Rav Hisda’s doubt concerned one who lived in an old house belonging to another, without causing him any loss whatsoever, and this doubt still remained unresolved.

Send it -

Rav Hisda’s doubt -

to the academy of Rabbi Ami,

and

he said:

Rabbi Ami: He is certainly exempt from payment, for

what did he do to him

the owner of the courtyard,

and what loss did he cause him, and what damage did he inflict upon him!?

And

Rabbi Hiyya bar Abba -

to whom they had also sent Rav Hisda’s doubt -

said: Let us consider the matter

[Let us examine the matter], and then

they sent it before Rabbi Hiyya bar Abba again

[They returned and sent the question to Rabbi Hiyya bar Abba],

he said,

Rabbi Hiyya wondered:

They keep sending all this to me

[They send so much to me]!? But

if I had found a reason for the matter, would I not have sent it to them

[If I had been certain about the matter, would I not have sent it to them]!?

It was stated:

that the amoraim disagreed regarding Rabbi Yohanan’s view concerning Rav Hisda’s doubt:

Rav Kahana said in the name of Rabbi Yohanan:

One who lives in another’s courtyard without his knowledge

does not have to pay him rent,

because: “The one who benefits, while the other suffers no loss, is exempt.”

Rabbi Abbahu said in the name of Rabbi Yohanan: He has to pay him rent,

because: “The one who benefits, while the other suffers no loss, is liable.”

Rav Pappa said:

This statement of Rabbi Abbahu,

in the name of Rabbi Yohanan,

was not stated explicitly;

Rabbi Yohanan did not say this explicitly.

Rather, it was stated by inference,

meaning: Rabbi Abbahu understood that this was Rabbi Yohanan’s view;

as we learned

in tractate Me'ila:

There are two ways in which a person commits sacrilege with consecrated property:

The first: by transferring it from one domain to another.

The second: by deriving benefit from it.

If

the treasurer took for himself

a stone or a beam belonging to consecrated property, he has not committed sacrilege.

If he gave

the treasurer

it to another, he

the treasurer

has committed sacrilege

through giving it to the other,

but

if

the other did not commit sacrilege

when he subsequently used it, for the consecrated property had already become ordinary property through the sacrilege of the giver.

If he built it

the treasurer - a stone or beam belonging to consecrated property -

into his house, he has not committed sacrilege until he lives beneath it, enjoying a benefit worth one peruta,

for anyone who derives benefit from consecrated property commits sacrilege.

And Shmuel said:

This statement that we learned, “If he built it into his house, he has not committed sacrilege,”

applies when he placed it

as it was

over an opening in the roof

to seal it, but did not permanently affix it there, for no change has occurred.

And Rabbi Abbahu was sitting before Rabbi Yohanan

[Rabbi Abbahu was sitting before Rabbi Yohanan],

and was saying in the name of Shmuel:

This indicates that

from what we learned - that one who lives beneath a stone or beam belonging to consecrated property has committed sacrilege - one can derive:

One who lives in another’s courtyard without his knowledge has to pay him rent,

for otherwise this person who lived there and derived benefit from consecrated property would not have committed sacrilege.

And he remained silent before him

[Rabbi Yohanan remained silent and did not answer him].

He -

Rabbi Abbahu -

thought: Since he remained silent,

Rabbi Yohanan did not respond to him, he certainly

agrees with him

that there is indeed proof from here that one who lives in another’s courtyard without his knowledge has to pay him rent; therefore Rabbi Abbahu said that this was Rabbi Yohanan’s view.

But

the Gemara explains that

that is not so

[That is not the case], for Rabbi Yohanan’s silence was not an acknowledgment of Rabbi Abbahu’s words; rather,

Rabbi Yohanan simply paid no attention to him

[Rabbi Yohanan did not address Rabbi Abbahu’s statement], because in his view there was no proof from here,

in accordance with the statement of Rabba; as Rabba said: