Bava Metzia 116b — the Talmud in English

Mishna:

The house, and the upper story

that was above the house, which were

of two people,

such as brothers who divided among themselves the inheritance of their father’s house, and the house belonged to one, while the upper story belonged to the other,

collapsed,

and were destroyed, and we do not know, from the form of the collapse, which stones belong to the owner of the house and which belong to the owner of the upper story,

both divide

equally,

with the beams, the stones, and the earth.

And

in a case where evidence can be brought from the form of the collapse as to what belongs to the owner of the house and what belongs to the owner of the upper story,

we examine which are the stones likely to break,

and according to this they divide the stones.

For example, if the house broke from its foundation, and therefore the entire house fell beneath itself, we know that the lower stones broke, and therefore the house fell. But if the wall fell like a staff, which had been standing upright and fell, then it is certain that the upper stones broke, since they fell from a high place and struck the ground, while the lower stones remained whole, since they fell from a low place.

And

if one of them recognized

some of

his stones,

and his fellow acknowledged some or all of them,

he takes them, and they are counted for him in the accounting.

And the Gemara will explain according to which accounting they divide the remaining stones.

Gemara:

We learned in the Mishna: The house and the upper story belonging to two people collapsed; both divide the beams, the stones, and the earth, and we examine which stones are fit to break.

And the Gemara infers:

From the fact that it teaches

in the Mishna

“we examine

which stones are fit to break,”

by inference

you hear this:

that it is possible to determine concerning them whether

it fell through collapse from its foundation, or whether it fell through impact A0054.

This indicates that the case is one in which it is possible to establish whether the building broke from its foundation or fell like an upright stick, causing the upper stones to strike the ground.

And this is difficult:

If so,

in the

first clause,

where we learned, “both divide the stones,”

why do they divide

equally the whole and broken stones?

Let us see A0063:

which it was:

if it fell through impact A0065, then we certainly know that

if the house fell like a stick and the upper stones struck the ground, then we certainly know that

the upper story broke A0067, and the owner of the house takes the whole stones, while the owner of the upper story takes the broken ones. And

and the owner of the house should take the complete stones, while the owner of the upper story takes the broken ones.

if it fell through collapse from its foundation A0069, then certainly

if the house broke from its foundation, then certainly

the lower part broke A0071, and the owner of the upper story takes the whole stones, while the owner of the house takes the broken ones.

and the owner of the upper story should take the complete stones, while the owner of the house takes the broken ones.

The Gemara answers:

It is necessary:

the first clause of our Mishna is dealing with a case

where it fell at night,

and we did not see how it fell. Therefore, they divide equally.

And

we ask: Still,

let us see them in the morning A0080! And we answer: the first clause is dealing with a case such as

and see what the pile looks like; based on that, they will know whether the house fell from the impact or from its foundation. The Gemara answers: The first clause deals with a case

where they had cleared them away A0082, and now it is impossible to see how the house fell.

where the stones had already been cleared from the place of the collapse, and it is now impossible to see how the house fell.

And

we ask:

let us see who cleared them away, and ask him,

let us see who cleared the stones and ask him how the house fell?

And we answer: it is speaking in a case where

the people of the public domain cleared them away, and went A0091

and

elsewhere,

and we do not know who cleared away the collapse. But it is still difficult:

let us see in whose domain they are lying, and let the other be the one who seeks to take from his fellow, who bears the proof A0095?

and let the person in whose property the stones are take the complete ones, since the other has the status of “the one who seeks to take property from his fellow must bring proof.”

And we answer:

It is necessary:

it is speaking of a case

where they were lying in the courtyard of both of them A0101.

so that the stones are located in the courtyard of both of them.

Alternatively, in the public domain,

where neither one is in possession, and therefore they divide equally.

And if you wish, say A0105: even if we establish it as a case where they were in the courtyard of one of them, they must nevertheless divide equally, since he is not considered to be in possession, because

partners in such a situation do not insist against one another

partners in such a case do not insist against one another A0107.

partners do not object when shared property is located in the domain of one of them].

We learned in the Mishna:

If one of them recognized

some of his stones, he takes them and they are counted for him in the accounting.

And the Gemara discusses:

And the other one,

his fellow,

what does he claim?

For in either case,

if

it is speaking of a case

where he says, “Yes,”

that he acknowledged him,

it is obvious

that the other may take them.

And if he did not say, “Yes,”

, why does he take them?

After all, his fellow denies him.

Rather,

certainly the Mishna is dealing with a case

where he said to him, “I do not know.”

And if so,

let us say that

our Mishna is

a refutation

of the

w

ords of

Rav Naḥman,

which are brought below.

For it was stated:

one who claims from his fellow,

“I have a hundred dinars with you!”

and the other says, “I do not know.”

Rav Huna and Rav Yehuda say: He is liable!

Since “certain and uncertain—the certain is preferable.”

Rav Naḥman and Rabbi Yoḥanan say: He is exempt!

For establish the money in its presumption of possession. However, the Sages instituted that the defendant must take a rabbinic oath that he indeed does not know.

And seemingly, our Mishna is difficult against the words of Rav Naḥman, since it is explained in the Mishna that if one of them does not know, while his fellow claims, “I certainly know” — “the certain is preferable”! And this is unlike the words of Rav Naḥman .

And we answer: it is possible to establish the Mishna

as Rav Naḥman said

Rav Naḥman

elsewhere—

For example, where there is an oath-related matter between them,

where the other became obligated by a Torah oath to his fellow, as will be explained below.

And

here too

in our Mishna, it is speaking

for example, where there is an oath-related matter between them.

And the Gemara explains:

What are the circumstances of an oath-related matter?

As in Rava’s statement. For Rava said:

one who claims from his fellow

“I have a hundred dinars with you!” and the other says, “You have only fifty with me, and regarding the rest I do not know,”

he has become liable to him for the oath of one who partially admits a claim, but he cannot take the oath, since he is not liable to him for the rest, because he does not know; therefore,

since he cannot swear, he must pay!

And if so, the Mishna, too, is speaking of a case in which he admitted to him regarding some of the stones, but regarding the rest he does not know, and since he is unable to take an oath regarding them, he pays .

We learned in the Mishna: If one of them recognized some of his stones, he takes them,

and they are counted for him in the accounting.

Rava thought to say: According to the accounting of the broken ones.

That is, the other one will take broken stones corresponding to them. For example, if there were one hundred broken stones belonging to each of them, and one hundred whole stones, and one of them recognized twenty whole stones, he will take thirty broken stones and seventy whole stones [fifty whole stones by virtue of “they shall divide,” and twenty whole stones that he recognizes], while his fellow will take seventy broken stones [fifty broken stones by virtue of “they shall divide,” and an additional twenty broken stones corresponding to the twenty whole stones that his fellow recognizes], and thirty whole stones.

Apparently, since he said

his fellow

“I do not know,”

as stated above,

it is all the worse [

his claim is the most defective, and therefore he loses and takes broken stones].

Abaye said to him: On the contrary, this is all the worse!

The one claiming certainty has a defective claim,

since he knows this much, he does not know any more; therefore, he has nothing further, and all the others belong to that one [

from the fact that he identified only some of the stones, it is a sign that only they are his, while the rest belong to his fellow]. And therefore he should lose on account of his claim.

Rather, Abaye said:

His fellow takes

according to the accounting of the whole ones.

That is, corresponding to every whole stone that he takes, his fellow also takes a whole stone.

And we raise an objection:

If so, what does it benefit him [

what did he gain by recognizing some of his stones]?

And we answer:

For the benefit of the wider bricks.

For he can take the wider bricks, if he recognized that they were his.

Alternatively, the worked clay.

If there are bricks made of better clay, and he recognized that they were his, he takes them.

Mishna:

The house and the upper story

that belonged to one person, and he rented the upper story to his fellow, and

the upper story was damaged,

part of the ceiling of the house fell, or one of the walls of the house, and as a result the upper story was damaged.

And the owner of the house does not wish to repair it.

Then the owner of the upper story descends and lives below

in the house,

until

he repairs the upper story for him.

Rabbi Yosei says:

If the ceiling of the house, which serves as the floor for the upper story, was damaged,

the lower one provides the ceiling, and the upper one provides the plastering,

which is a layer of clay upon the floor of the upper story, which is the ceiling of the house beneath it.

And its reason will be explained in the Gemara: since plastering is “filling depressions,” that is, it is possible to live even without plastering, but in order to level the floor one places plastering, and this is the work of an ordinary laborer, and it is incumbent upon the renter to do it.

Gemara:

We learned in the Mishna: If the upper story was damaged, then the owner of the upper story descends and lives below.

The Gemara explains:

“Was damaged”—to what extent?

Would the renter who lives in the upper story above descend to live below over every minor damage?

Rav said:

Only if it was damaged

in its majority does he descend below; but for less than this, the owner of the house gives him an area in his house to use corresponding to what was damaged in the upper story, and in the remainder he continues to live in the upper story.

он спускается вниз. Но если разрушилось меньше, хозяин дома должен предоставить ему в своем доме площадь, соответствующую разрушенной части верхнего этажа, а в остальной части он продолжает жить наверху.

And Shmuel said:

Even if it was damaged only

by four

handbreadths, he descends and lives below.

And the Gemara explains their dispute:

Rav said “in its majority,” but not by four.

Since

a person

can

l

i

ve half below and half above.

And until the majority of the upper story is damaged, he cannot demand of the owner of the house to live in his house; rather, he lives half above, and corresponding to what was damaged, he lives below.

And Shmuel said “by four,”

since

it is not

the way of a

person to l

i

ve half below and half above,

and therefore, if it was damaged by four handbreadths, which is a significant measure, he descends and lives below.

In any event, it is explained in the Mishna that if the upper story was damaged, the renter has the right to descend to live in the house of the landlord.

And the Gemara objects:

What are the circumstances [

how is it speaking]?

If he said

to the renter,

“This upper story

that I am renting to you”,

why is he obligated to provide him with the house in its place? For the upper story that he rented to him

is gone [

it has gone away], and he can say to him, “Your fortune caused it, and you have no claim against me”!

Rather, if he said to him, “I am renting you an upper story without specification

that I am renting to you”,

if so,

let him rent him another one [

let him rent him another upper story of his, if he has one ], and why do we compel him to take him in together with him in the house ?

Rava said: It is not necessary,

our Mishna is dealing with a case

in which he said to him

the landlord to the renter,

“This upper story that I am renting to you, when it rises [

while it still exists]

rise in it [

live in it],

and when it descends [

and when it breaks],

descend in it [

descend and live in the house].”

And we object:

If so,

for he explicitly obligated himself to him in this way,

what is it coming to teach?

Why did the Mishna need to inform us of this law?

Rather, Rav Ashi said:

Our Mishna is dealing with a case

in which he said to him, “This upper story that is upon this house I am renting to you,”

and in this case, even though he did not explicitly obligate himself to let him live in the house, nevertheless he descends and lives in the house,

for he designated the house for the upper story.

For if he had not designated it, why did he say to him, “that is upon this house”? For we see that the upper story stands upon the house. Rather, certainly his intention was to designate the house for him in case the upper story fell.

And is this not like that which Ravin bar Rav Adda said in the name of Rabbi Yitzhak: An incident occurred involving one who said to his fellow, “A vine branch [

a grapevine branch]

t

hat was trained

upon

a peach

tree, I sell to you ”.

And the

tree

p

e

ach tree was uprooted.

And the incident came before Rabbi Hiyya, and he said: You are obligated to provide him with

a

peach tree

another

as long as the vine branch exists.

The reason is that since he said to him, “that is upon a peach tree,” certainly he intended to designate the peach tree for him as long as the vine branch stands.

It is explained in the Mishna that the renter is permitted to descend to live in the house in a case where the upper story was damaged.

Rabbi Abba bar Memel inquired [

was uncertain]

: