Bava Metzia 117b — the Talmud in English

Gemara:

Rabbi Yoḥanan said: In three places Rabbi Yehuda taught us that it is forbidden for a person to benefit from his fellow’s property

if he did not receive it as a gift, until that benefit is with his consent and agreeable to him. Even though according to the law it would appear permissible for him to benefit [from it].

The first is that which we learned

in our Mishna: this one, too, dwells in another’s [house] and must pay him rent, and even though this one benefits and that one suffers no loss, the Sages instituted that he should not benefit from it without his consent.

What is the other one

[where is the additional place]?

As we learned: One who gives wool to a dyer

on the condition

to dye it for him

в

red, and he dyed it black.

Or on the condition of dyeing it

black, and he dyed it red.

Rabbi Meir says: He gives him

[the dye]

the value of his wool,

the value of white wool as it was given to him, and takes the dyed wool for himself. Since he acquired it through a change, and became liable to pay money to the owners.

Rabbi Yehuda says:

He gives the dyed wool to the owners, and

if the enhancement

that the wool gained as a result of his dyeing

is greater than the expenditure

that the dyer spent in his work,

he gives him

[the owners give the dyer] the

expenditure

alone,

and if the expenditure is greater than the enhancement, he gives him the enhancement.

As is the law regarding one who enters his fellow’s field without permission.

And Rabbi Yehuda’s reasoning is that even though ordinarily a robber acquires through a change, here the Sages instituted that he does not acquire it, since he may not benefit from his fellow’s property without his consent.

And this is the second place where Rabbi Yehuda made this law known to us.

And the other one, what is it

[where is the third place]?

As we learned: One who paid part of his debt and entrusted his document

to a trustworthy third party, so that the creditor would not return to demand his entire debt from him,

and said to him: If I do not give you

the remainder of the debt

from now until a certain time, give him his document

and he will collect the entire debt with it.

What should the third party do if

the time arrived and he did not pay?

Rabbi Yosei says—

he should give it!

And Rabbi Yosei holds: “An asmachta acquires,” and since the borrower transferred the document to the lender if he would not repay him by a certain time, and he did not repay him, the lender acquired it and again collects the entire debt written in it.

Rabbi Yehuda says: He should not give it!

And in the initial understanding, the Gemara understood that Rabbi Yehuda holds: Even though ordinarily “an asmachta acquires,” here, since this is not a gift given wholeheartedly, the Sages instituted that the lender should not benefit from it.

And this is the third place where Rabbi Yehuda made known to us that it is forbidden to benefit from one’s fellow’s property against his will.

And we reject this:

Why

[why did you bring proof from these Mishnayot that it is forbidden for a person to benefit from his fellow’s property]? Behold, there is no proof for this law from the three Mishnayot!

And the Gemara explains that no proof can be brought from our Mishna:

Perhaps Rabbi Yehuda said this only here

that he must pay him rent,

because there is blackening

[since the house is slightly damaged by the dwelling], and it is no longer “this one benefits and that one suffers no loss,” for the householder does suffer a slight loss. Therefore, he must pay for the dwelling.

Alternatively,

from the second Mishna, in which he gave [wool] to a dyer

to dye it red for him, and he dyed it black,

there is also no proof, for there the reason is

because he changes

[that is, he changed the owners’ wishes]

, and the

refore

we learned: “Anyone who changes has the lower hand,”

and therefore he takes payment according to the law of one who enters without permission.

And

so too from the third Mishna:

one who paid part of his debt, also

no proof can be brought, because it

is an asmachta, and we have heard Rabbi Yehuda say

that an asmachta

does not acquire.

And therefore Rabbi Yehuda said: “He should not give it.”

But ordinarily, it is possible to say that it is permissible to benefit from one’s fellow’s property without his consent, where he suffers no loss through this.

The Gemara discusses: The house and the upper story belonging to two people were destroyed, and the householder or the owner of the upper story wishes to rebuild his house with materials different from those used originally—what is their law?

Rav Aḥa bar Adda said in the name of Ulla: The lower one

[the householder]

who comes to change to gavil,

that is, his house was initially built with hewn stones, five handbreadths wide, and now he wishes to build it with gavil, which are unhewn stones six handbreadths wide,

we heed him.

Since a gavil wall is stronger than one of hewn stone.

But if it was initially built with gavil, and now he wishes to build it

with hewn stone, we do not heed him.

And likewise, if the house was initially built with bricks, whose width is three handbreadths, and now he wishes to build it

with kafisin,

so that the wall’s width will be four

, we heed him.

But if it was initially built with kafisin, and now he wishes to build it

with bricks, we do not heed him.

And likewise, if it was roofed with sycamore beams, and he wishes

to roof it with cedar beams, we heed him.

But if it was roofed with cedar beams, and he comes to roof it

with sycamore beams, we do not heed him.

And likewise, if he wished

to reduce the windows, we heed him.

But

to increase the windows, we do not heed him.

And if he wished

to raise

the house

, we do not heed him.

But

to reduce

its height

, we heed him.

The general rule is: Wherever he comes to strengthen the house, we heed him. But if he comes to build it in a more unstable manner than before—we do not heed him! Since he became obligated to the owner of the upper story to build his house as it was previously.

And conversely,

the upper one

[the owner of the upper story]

who comes to change to hewn stone, we heed him. To gavil, we do not heed him. With kafisin, we do not heed him. With bricks, we heed him. With cedar beams, we do not heed him. With sycamore, we heed him. To increase the windows, we heed him. To reduce the windows, we do not heed him. To raise it, we do not heed him. To reduce it, we heed him.

The general rule is: Wherever he comes to reduce the weight of the load upon the lower house, we heed him. But if he makes the house heavier, the householder may prevent him.

We further considered and discussed: If

neither this one nor that one has

[for both of them were too poor to rebuild the house, and the owner of the land wishes to sell the land]

what [is the law]?

Can the owner of the upper story prevent him, or share the land with him?

According to the version of the Rif:

It was taught:

If

neither this one nor that one has, the owner of the upper story has no share at all in the land!

It was taught: Rabbi Natan says: The lower one takes two parts, and the upper one a third.

And others say: The lower one takes three parts, and the upper one takes a quarter.

Rabba said: Hold the words of

Rabbi Natan

in your hand!

Since

he is a judge and descends to the depths of the law

[he descends to the root of the laws].

He holds: How much does the upper story cause the house to lose

[what is the measure of the loss that the upper story causes to the house]?

A third

[a third].

Therefore he has a third

[a third].

Mishna:

In the previous Mishna, the obligations of the householder toward the owner of the upper story, which are incumbent upon him, were explained. Our Mishna discusses another case resembling a house and an upper story.

And likewise, an olive press that is built in

the midst of

a rock, with a single garden above it,

that is, upon the rock dome above the olive press.

And the garden belonged to one person, while the olive press beneath it belonged to another—for example, brothers who divided their father’s assets: one took the garden, and the other took the olive press.

And it became breached—

the rock dome fell and the garden was destroyed.

The owner of the garden descends

to the olive press

and sows below, until

the owner of the olive press makes

his olive press into arches,

and the upper one places earth upon them and sows.

A wall or a tree that fell into the public domain and caused damage

by its fall

, he is exempt from paying.

For what could he have done? He is compelled [by circumstances]! But if

they gave him

the court

time to cut down the tree,

or

to demolish the wall,

for example, they saw that the wall or the tree was inclined to fall and gave him time to cut it down [or demolish it],

and they fell

and caused damage—if they fell

within the time, he is exempt.

But

after the time, he is liable.

Since he should have cut it down.

One whose wall was adjacent to his fellow’s garden, and it fell

into the neighbor’s garden,

and he said to him

the neighbor said to the owner of the wall,

“Clear away your stones!”