Bava Metzia 116b (קטז:) — the Talmud in English

Mishna:

The house and the upper story

that was above the house, which were

owned by two people,

for example, brothers who divided among themselves the inheritance of their father’s house, with the house belonging to one and the upper story belonging to the other,

collapsed,

and were destroyed, and we do not know, based on the manner of the collapse, which stones belong to the owner of the house and which belong to the owner of the upper story,

they divide

equally

the wood, the stones, and the earth.

And

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

they examine which stones were likely to break,

and divide the stones accordingly.

For example, if the house broke from its foundation and therefore the entire house fell downward, we know that the lower stones broke, and that is why the house fell. But if the wall fell like a stick, having stood upright and then fallen, then certainly the upper stones broke, since they fell from a height and struck the ground, while the lower stones remained intact, 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 toward his share.

The Gemara will explain according to which calculation they divide the remaining stones.

Gemara:

We learned in the Mishna: The house and the upper story, which belonged to two people, collapsed; they divide the wood, the stones, and the earth, and they examine which stones were likely to break.

The Gemara infers:

Since it teaches

in the Mishna

“they examine

which stones were likely to break,”

by inference

you learn this:

that it is possible to determine whether

it fell from its foundation or whether it fell upon impact [

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

The Gemara raises a difficulty:

If so,

in the

first clause,

where we learned, “they divide the stones,”

why do they divide

the intact and broken stones equally?

Let us examine [

let us see],

if it fell upon impact [

if the house fell like a stick and the upper stones struck the ground], then it is certain to us that

the upper ones broke [

the upper story is the one that broke], and the owner of the house takes the intact stones while the owner of the upper story takes the broken stones. And

if it fell from its foundation [

if the house collapsed from its foundation], it is certain that

the lower ones broke [

the lower part broke], and the owner of the upper story takes the intact stones while the owner of the house takes the broken stones.

The Gemara answers:

It is necessary

the first clause of our Mishna is dealing with a case

in which it collapsed at night,

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

And

we raise a further difficulty: Even so,

let them examine it in the morning [

let them see what the pile looks like in the morning, and on that basis determine whether the house fell upon impact or from its foundation]. And we answer: The first clause is dealing with a case

in which they had cleared it away [

in which the stones had already been removed from the place of the collapse], and it is now impossible to see how the house fell.

And

we raise a difficulty:

Let them see who moved them and ask him,

let them determine who moved the stones and ask him how the house fell.

And we answer: It is dealing with a case

in which people from the public domain cleared them away and went [

away]

elsewhere,

and we do not know who cleared away the collapsed debris. Yet the difficulty remains:

Let them see in whose domain the stones are situated, and let the other be the one who seeks to take from his fellow, upon whom the burden of proof lies [

let them see in whose domain the stones are located, and let him take the intact stones, since the other is subject to the rule, “The burden of proof is upon the one who seeks to take from his fellow”].

And we answer:

It is necessary

to state that the case is

in which they were situated in a courtyard belonging to both of them [

the stones were located in a courtyard belonging to both of them].

Alternatively, in the public domain,

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

And if you wish, say [

if you wish, it may be answered differently]: Even if we establish the case as one in which the stones 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 case do not insist against one another [

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 toward his share.

The Gemara discusses this:

And the other one,

his fellow,

what does he claim?

After all, either way,

if

the case is one

in which he says, “Yes,”

acknowledging his claim,

it is obvious

that the other may take them.

And if he did not say, “Yes,”

, why does he take them?

His fellow denies his claim.

Rather,

the Mishna is certainly dealing with a case

in which 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 cited below.

For it was stated:

One who claims from his fellow,

“I have a hundred dinars in your possession!”

and the other says, “I do not know.”

Rav Huna and Rav Yehuda say: He is liable!

Since “a definite claim and an uncertain claim—the definite claim prevails.”

Rav Naḥman and Rabbi Yoḥanan say: He is exempt!

For we maintain the money in its presumptive status. However, the Sages instituted that the defendant must take a rabbinic oath that he indeed does not know.

Seemingly, our Mishna presents a difficulty against Rav Naḥman’s words, since the Mishna states that if one of them does not know, while the other claims with certainty, “a definite claim and an uncertain claim—the definite claim prevails”! — This is contrary to Rav Naḥman’s position.

And we answer: The Mishna can be established

in accordance with what

Rav Naḥman

said elsewhere—

For example, where there is a matter involving an oath between them,

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

And

here too,

our Mishna is dealing with a case

where there is a matter involving an oath between them.

The Gemara explains:

What are the circumstances of a matter involving an oath?

As in Rava’s statement. For Rava said:

One who claims from his fellow

“I have a hundred dinars in your possession!” and the other says, “You have only fifty in my possession; as for the rest, I do not know,”

he has become obligated to take the oath of one who admits to part of a claim, but he cannot take the oath, since he does not know whether he owes him the rest. Therefore,

since he cannot take an oath, he must pay!

And if so, the Mishna too is speaking of a case in which he admitted that some of the stones belonged to him, but does not know concerning the rest; and since he cannot swear concerning 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 reckoning.

Rava thought to say: According to the ratio of the broken stones.

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 would take thirty broken stones and seventy whole stones [fifty whole stones by virtue of the principle that they divide, and twenty whole stones that he recognizes], while his fellow would take seventy broken stones [fifty broken stones by virtue of the principle that they divide, and another 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,

his claim is even weaker [

his claim is extremely weak, and therefore he loses and takes broken stones].

Abaye said to him: On the contrary, this one’s claim is weaker!

The claim of the one who asserts with certainty is weak,

since he knew this much but did not know any more; therefore, he has no further claim, and all the rest belong to the other one [

since he identified only some of the stones, this indicates that only those are his, while the rest belong to his fellow]. Therefore, he should lose on account of his claim.

Rather, Abaye said:

His fellow takes

according to the ratio of the whole stones.

That is, for every whole stone that he takes, his fellow also takes one whole stone.

And we raise an objection:

If so, what benefit does it have for him [

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

And we answer:

For the sake of the broader bricks.

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

Alternatively, for the sake of the better-quality clay.

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

Mishna:

The house and the upper apartment

which belonged to one person, and he rented the upper apartment to his fellow, and

the upper apartment collapsed,

meaning that part of the ceiling of the house, or one of the walls of the house, fell, thereby damaging the upper apartment.

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

Then the owner of the upper apartment goes down and lives below

in the house,

until

he repairs the upper apartment for him.

Rabbi Yosei says:

If the ceiling of the house, which serves as the floor of the upper apartment, collapsed,

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

which is a layer of clay placed atop the floor of the upper apartment, which is the ceiling of the house beneath it.

And the Gemara will explain his reasoning: the plaster is “the leveling of depressions”; that is, it is possible to live even without plaster, but in order to level the floor, plaster is applied, and this is work for an ordinary craftsman, which the tenant must perform.

Gemara:

We learned in the Mishna: If the upper apartment collapsed, the owner of the upper apartment goes down and lives below.

The Gemara explains:

“Collapsed”—to what extent?

Does the tenant who lives in the upper apartment go down to live below in response to every minor damage?

Rav said:

Only if it collapsed

in its majority does he go down below. But if less than this collapsed, the owner of the house gives him an area in his house to use corresponding to the portion of the upper apartment that collapsed, while he continues living in the remaining part of the upper apartment.

And Shmuel said:

Even if it collapsed only

four

handbreadths, he goes down and lives below.

The Gemara explains their disagreement:

Rav said: In its majority, but not four.

Since

a person

can li

v

e

half below and half above. Until most of the upper apartment has collapsed, he cannot demand that the owner of the house let him live in his house; rather, he lives with half of his dwelling above, and with regard to the portion that collapsed, he lives below.

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: Four,

since

it is not

customary for

a person to li

ve

half below and half above,

and therefore, if it collapsed by four handbreadths, which is a significant measure, he goes down and lives below.

In any event, it is explained in the Mishna that if the upper apartment is damaged, the tenant has the right to go down and live in the house of the landlord.

The Gemara raises an objection:

What are the circumstances [

how is this case being described]?

If he said

to the tenant,

“I am renting you this upper apartment

,”

why is he obligated to provide him with the house in its place? After all, the upper apartment that he rented to him

is gone [

it has disappeared], and he can say to him: “Your bad fortune caused this, and I owe you nothing!”

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

,”

if so,

let him rent him another one [

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

Rava said: It is necessary

that our Mishna is discussing a case

in which he said to him

the landlord to the tenant:

“This upper apartment that I am renting you—when it is standing [

while it still exists]

stand in it [

live in it],

and when it descends [

and when it breaks],

descend with it [

go down and live in the house].”

And we raise an objection:

If so,

since he explicitly obligated himself to this,

what is the purpose of stating it?

Why did the Mishna need to teach us this law?

Rather, Rav Ashi said:

Our Mishna is discussing a case

in which he said to him, “I am renting you this upper apartment, which is atop this house,”

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

for he subordinated the house to the upper apartment.

For if he had not subordinated it, why did he say to him “which is atop this house”? After all, we see that the upper apartment stands upon the house. Rather, certainly his intention was to subordinate the house to him in the event that the upper apartment falls.

And is this not like that which Ravin bar Rav Adda said that Rabbi Yitzḥak said: There was an incident involving one who said to his fellow, “The vine branch

[

that

had been trained

over

a

this peach tree, I am selling to you .”

And the

tree

p

e

ach tree was uprooted.

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

a

peach tree

another

as long as the vine branch remains.

The reason is that since he said to him “which is atop the peach tree,” he certainly intended to subordinate the peach tree to him for as long as the vine branch remains standing.

It is explained in the Mishna that the tenant is permitted to go down and live in the house when the upper apartment collapses.

Rabbi Abba bar Memel raised [

was uncertain]

: