פירוש על בבא בתרא 3:10

חזקת הבתים – whomever has lost his document [of sale] and brought witnesses that he has taken possession for three years with all of those things that are written in our Mishnah, he is believed to state that they were purchased property in his hand and we don’t say to him, “bring the bill of sale that it it was sold to you for up to three years, people are careful with documents; more than three years, they (i.e., people) are not careful. And we say to the individual that is against him if you have [proof] that you didn’t sell it, you should have protested and state before two [witnesses]: “know that so-and-so consumed my land through theft” and the matter would reach his ears and he would be careful with his document, for your friend has a friend, and the friend of your friend has a friend, and if you don’t

The legal period of possession [in order to establish ownership] for houses, cisterns, trenches, caves, dovecotes, bath-houses, olive-presses, irrigated fields and slaves and anything which continually produces a yield is three complete years.
The legal period of possession [in order to establish ownership] for a field irrigated by rain water is three years and they need not be completed. Rabbi Yishmael says: “Three months during the first year, and three months during the last year and twelve months during the middle year, which makes eighteen months.” Rabbi Akiva says: “One month during the first year and one month during the last year and twelve months during the middle year, which makes fourteen months.”
Rabbi Yishmael said: “When does this apply? With regards to a sown field, but with tree plantation, if he brought in his produce (, collected the olives and gathered in his fig harvest, this counts as three years.”
In order to understand our mishnah and the remaining mishnayoth of the chapter we will need to explain how one can demonstrate ownership over a piece of land by “possession”. In general in Jewish law there is an assumption of ownership to the one who possesses a certain item. If Reuven possesses an item and Shimon claims that the item is his, and Reuven responds that Shimon sold him the item, Shimon will have to bring proof that the item still belongs to him. Since the item is in Reuven’s possession it is assumed to be his. This is true with regards to movable property. However, with regards to land, a person who is on a piece of land cannot necessarily claim ownership to the land. If Reuven is on a piece of land and Shimon claims it is his and Reuven responds that Shimon sold it to him, Reuven will have to prove his claim. If, however, Reuven has been living on this land, or in another way possessing the land for three years, he has an assumption of possession. In such a case Shimon will need to prove that he still owns the land if he wishes to recover it from Reuven. The idea behind this law is that if a person demonstrated ownership over a piece of land for an extended period of time and no one protested, it is reasonable to assume that the land is his.
The third chapter of Bava Batra deals with the rule of three year possession called “chazakah” in Hebrew. The rule, as we shall see, does not apply in the same way with everything.
If a person demonstrated ownership over the items listed in section one for three years, than they are assumed to be his. For instance, if Reuven used a house for three years and after this time Shimon came and claimed that the house was his, if Reuven were to respond that Shimon sold or gave him the house, Reuven needs to bring witnesses that he has possessed the house for three years, and then it belongs to him. In order to establish a presumption of ownership over these items one must possess them for three full years.
In order to establish a presumption of ownership over a field irrigated by rain water, one need not possess the field for three full years, but rather it is sufficient to posses them for parts of three years. This difference in law is explained by the difference between the irrigated field mentioned in section one and the field irrigated by rain water in section two. A field irrigated by man will yield produce many times in a season and therefore to demonstrate ownership one must actively possess the field for three full years. The field irrigated by rain will only yield one crop per year and therefore it is enough to harvest or work three crops to demonstrate possession. In order to do this one can work the field for three partial years. Rabbi Yishmael and Rabbi Akiva disagree with regards to the nature of the partial three years.
In section three Rabbi Yishmael states that there is a difference between a field sown with produce and a field with fruit trees. When Rabbi Yishmael stated that one needed eighteen months in order to demonstrate ownership, this related to sown fields. In a sown field there is only one harvest per season, and therefore he would need three harvests in order to demonstrate ownership through possession. With regards to trees, each type of tree has its own harvesting season. Therefore if he were to harvest the grapes in one season, the olives in another and the figs in a third, that would be enough to establish possession, even though they were all done in one year.

שובכות – where they raise/grow doves there.

בית הבדים – that they press olives in them to produce oil.

בית השלחין – for since there is a spring in it that waters the field from it always and produces fruits frequently and anything that produces fruits frequently, its presumption of claim based upon undisturbed possession [during a legally fixed period] is three years from day to day.

והעבדים – and even though that we hold that animals living in folds (i.e., moving livestock, which they leave in the daytime) is no evidence of ownership (as they may have come over by accident – see Talmud Bava Batra 36a), meaning to say that sheep from the language "גדרות צאן"/fenced in sheep, have no presumption of ownership (as they may have come over by accident), and the same law applies to all living creatures; that is, a presumption immediately that they lack this if it was known that the sheep and/or the slaves belonged to someone else, and entered the house of the other person. But this one claims that they entered into his house that they were purchased in his hand: “Behold I am known to hold them in possession. This is not a presumption of ownership because it is their manner to go from house to house. But if he held/took possession of a slave for three years, that is claim based upon an undisturbed possession and there is no need [to produce] a bill of sale.

שדה הבעל – it is supplied from rain water and doesn’t produce fruits other than once a year.

חזקתה שלש שנים – and it doesn’t have to be from day to day.

רבי ישמעאל אומר שלשה חדשים – there is grain that grows in three months such as barley and oats and lentils and it is found that one eats three grains in eight months.

רבי עקיבא אומר – there is something that grows in thirty days such as corn at the earliest stage/low growth and vegetables. Therefore, if one ate it for fourteen months that is considered a presumption of ownership. But Rabbi Yishmael holds that the eating of corn at the earliest stage and vegetables are not considered presumption of ownership.

במה דברים אמורים – that one needs eighteen months for a field sufficiently watered by rain and requiring no artificial irrigation.

בשדה לבן – [a bright, vegetable or grain field that lacks shade] where all of its fruits are collected at one time, therefore, it requires three [complete] years.

אבל בשדה האילן – that whose fruits are collected at periods – grapes at one period and olives at another period and figs at another period.

כנס את תבואתו – wine of grapes.

כנס את זיתיו וכנס את קיצו – he harvested figs and dried them, and brought them into his house, that is a presumption of ownership, as if it is three years, but the Halakha is not according to either Rabbi Akiva nor Rabbi Yishmael.

שלש ארצות לחזקה – three [distinctive] lands in the Land of Israel are divided each from the other concerning the matter of presumption of claim of ownership. For if he had taken possession in one of these [distinctive] lands, and the owner of the land is in the other, his presumption of ownership is not a presumption, because the caravans are not ae not found from one to the other, and even though it is not an emergency or [time of] war, it is similar to an emergency. But if the owner of the land would renounce, there would not be someone to inform the other who has taken possession. Therefore, it was appropriate to the one taking possession to be careful with his document, and since he was not careful, he would lose.

There are three regions with regards to possession: Judea, beyond the Jordan and the Galilee. If the owner was in Judea and another took possession [of his property] in the Galilee; Or if he was in the Galilee and another took possession [of his property] in Judea, such possession does not demonstrate ownership, until he is in the same region.
Rabbi Judah said: “They have specified a period of three years so that if the owner was in Spain and another took possession [of his property] during one year, they could make it known to the owner during the next year and he could return in the third year.”
Our mishnah divides the land of Israel into three distinct parts. As we shall see, this division is important for the rules of chazakah, which we began to learn in mishnah one of this chapter.
If a person took possession of a field and another came within three years and protested that the field was his, the original owner would retain title to the property. Our mishnah deals with a situation where the original owner lived in a different region from his field and therefore he may not have known that another had taken possession of the field, in order to protest within the allotted three years. According to the opinion in section one, in such a case there is no demonstration of ownership through possession for three years. If the owner was in a different region, for instance in the Galilee and the field was in Judea, we cannot assume that the reason he didn’t protest for three years is that he didn’t own the field. Since he may not have heard there can be no ownership through possession. According to Rabbi Judah, the reason that the Rabbis allotted three years in order to establish ownership by possession is to allow messengers to travel up to a year’s distance, there and back, in order to alert the original owner that another had taken his fields. In other words, according to Rabbi Judah, three years time is meant to give the person a chance to protest on another’s possession of his property. If he doesn’t do so, we do not assume that he didn’t hear. Rather, we assume that he sold or gave away his property to the current possessor and therefore does not protest.

עד שיהא עמו במדינה – that both of them would be in Judea, or both of them beyond the Jordan River and even though this one was in one city and that one was in another city, because there were caravans found, he could protest, and since he did not protest, he lost out.

אמר ר' יהודה וכו' – for Rabbi Yehuda holds that the reason for presumption of ownership is not because until three years because people are careful with their documents, [but] more [than this], they are not careful, but the reason for his presumption of ownership is because people will not leave [someone, a usurper] consuming his own land even for one hour and remain silent. But this one that distanced himself for three years in order that if he was in Spain, etc. But if he was with him in the city, immediately, there would be presumption of ownership and in these three [distinct] lands [of the Land of Israel] where caravans are not found, during the three years, however, he would have presumption of ownership. But the Halakha is not according to Rabbi Yehuda.

כל חזקה שאין עמה טענה – that he will make the claim why does the person who possesses that which belongs to his fellow is not valid possession.

Introduction In the previous two mishnayoth we began to learn the laws of establishing ownership through possession. In mishnah three we learn what a “possessor” must say to the other person who claims ownership, in order for the “possessor” to establish ownership through possession. We also learn in mishnah three that certain people who possess land cannot claim ownership, even though they possessed for three years.

והבא מחמת ירושה – that he held possession of it for three years through the strength of the inheritance of his father, for it was his father’s on the day of his death.

An act of possession without which there is no claim [on the ownership of the property] is not valid possession [to establish ownership]. How is this so? If he said to him: “What are you doing on my property? And the other answered: “No one ever said anything to me”, this is not valid possession [to establish ownership]. [If he said to him]: “You sold it to me”, “You gave it to me as a gift”, “Your father sold it to me”, “Your father gave it to me as a gift”, this is valid possession [to establish ownership]. He who holds possession [for three years] due to inheritance [from the previous owner], does not need to make a claim. Section one In order for a person to claim ownership through possession he must claim that the counter claimant sold it to him. For instance Reuven comes to Shimon and claims that the land that Shimon possesses is Reuven’s. Reuven brings a deed or witnesses to prove that the land is his. We can now be sure that Reuven once owned the land and the question is does he still own the land. If Shimon says that from the time he possessed the land no one said anything to him, the land will go back to Reuven. Since Shimon does not have a logical explanation for how he received the land, he cannot keep it. If, however, Shimon were to claim that Reuven sold him the land or gave it to him as a gift, or that Reuven’s father had done so, than we can assume that the land now belongs to Shimon. Since he occupied the land for three years without Reuven protesting, we assume that Shimon received the land from Reuven or his father and lost his documentation. The one exception to this rule is the one who received his land as part of an inheritance from his father. If he can prove the land was his as inheritance he need not prove how his father received the land.

אין צריך טענה – to prove how it came to his father’s hand. However, proof is required when the saw his father live it in one day.

Craftsmen, partners, sharecroppers and guardians cannot establish ownership through possession. A man cannot establish ownership through possession of his wife’s property, nor may a wife establish ownership through possession of her husband’s property, nor a father of his son’s property, nor a son of his father’s property. Section two The people listed in section two by definition will use other people’s property. For instance craftsmen may come and do work on another person’s property. This is not a sign that they own the property and therefore they cannot establish ownership through possession. So too a spouse cannot claim title to his/her spouses property through possession, since husbands and wives regularly make use of each other’s property without protesting. Finally, the same is true of parents and children: they too cannot claim title to the other’s land due through possession.

האומנים – when they repair utensils –

When is this so [that one needs three years to establish ownership]? When the person attempts to acquire the land through possession. But, when the property was given as a gift, or when brothers shared a piece of their inheritance, or when one claimed title by possession to the property of a convert [who died without inheritors], then if the claimant has shut in, walled up or broken down anything, this counts as securing ownership through possession. Section three We learn here that it takes three years to establish ownership, only when the property is in dispute. However, if someone gives property to another person, or brothers split the property left to them in inheritance, or a person comes to take property that has no owners, all he must do is show minimal use on the property and it belongs to him. The example of minimal uses is that he changes a part of the outside wall, by making a lock, by adding onto the fence or even by breaking the fence. In these three ways a person can establish immediate ownership and the three years are not necessary.

They don’t have a claim of possession – If they were in possession of utensils of others, they are not able to claim that there were purchased in his hand and even if they are utensils that are not normally lent or rented out. And these words [refer] to when the utensil is found before us in the hand of the artisan. But if the utensil is not found before us in the hand of the artisan, but rather, that someone comes from the marketplace and claimed to the artisan: “I have a utensil with you that I gave you to repair. Return it to me.” And the artisan claimed: “It is true that it (i.e., the utensil) is with me, but you sold it to me,” the artisan is believed through an oath with מיגו/a legal rule according to which the deponent’s statement is accepted as true on the ground that, if he had intended to tell a lie, he might have invented one more advantageous to his case (see Talmud Bava Batra 31a). For if he wanted, he could have said “that nothing had ever taken place [between us]” or “I returned it to you.” And similarly, the artisan made the claim that is what you fixed a price with a charge for the repair.” But the other can say, “I did not make that arrangement other than for less.” If the utensil is found before us in the hand of the artisan, the owner of the utensil is believed. But if the utensil is not found before us in the hand of the artisan, the artisan is believed with an oath, and even if he transferred it to him with witnesses with the מיגו (see above) that if he had wanted, he could have said, “I had returned it to you.”

והשותפים – they have property held jointly and one of them consumed all the produce for three years, it is not considered a presumption of possession. And these words are when the land does not have the law of division. But if the property has the law of division, and one of them consumed for three years, that is considered possession.

והאריסים – he goes down into the land for one half, for one-third or for one-fourth, and consumed all the produce for three years, it is not considered presumption of possession. And especially with regard to hereditary land-tenants for he is like an אפוטרופוס/a guardian for the son but the tenant farmer who was brought down by the owner of the land himself and he consumed all the produce for three years, he does have presumption of possession.

ואין לאיש חזקה בנכסי אשתו – and even if he wrote to her while she was still his betrothed an unequivocal judgment: “I have nothing with regard to your property, nor the fruits of it, for now, he does not consume its produce from the law, and afterwards brought a proof that he ate produce for three years, that is not considered presumption of possession, for it was the manner of the wife to allow her husband that he can consume the fruits of her property, whether by law or not by law.

ואין לאשה חזקה בנכסי בעלה – and even if he designated for her land for her food and she consumed produce from another land belonging to her husband for thee years, even so, this is not a presumption of possession, for it is manner of a man to allow his wife that she may consume from his property, even with something that she does not have authority.

ולא לאב בנכסי הבן [ולא לבן וכו'] – Because they are like guardians one for the other.

במה דברים אמורים – that they are not a presumption of possession.

במחזיק – when he is possessing something where there is a protest/evidence of illegitimacy or disqualification (see Talmud Bava Batra 31b), for his fellow makes the claim that what is in your hand was stolen.

אבל הנותן מתנה – in our presence and stated to the recipient: “this gift is for you, take possession and acquire it.” All of these [things] that are stated above in our Mishnah lack presumption of possession, when they took possession like others who received a gift and acquired it, that the giver cannot retract. But the woman who gave or had sold to her husband her usufruct (i.e., that which belongs to the wife’s estate that the husband can use without responsibility for loss or deterioration), and when he took possession of it, the husband acquired it, and she cannot say: “I gave pleasure/gratification to my husband,” and specifically for mort-main (i.e., the wife’s estate is held by her husband, which, the case of her death or divorce, he must restore in specie, being responsible for all his landed property for loss or deterioration), or property that her husband designated for her in the Jewish marriage contract, we say that her sale is not a sale, and her gift [to someone] is not a gift, because she can claim: ‘I did it give my husband pleasure,” because her husband has an attachment to them. But her usufruct, which her husband, in principle, has no attachment to them, she cannot say: “I gave pleasure/gratification to my husband. But similarly, the man who sold to his wife from his property, if the monies that the wife purchased them are not that property, they are not hidden/preserved with her. The sale goes is established, and those properties belong to the woman and the husband can eat the produce, and if those monies were hidden with her, the sale is void, for he can say, “[it was done] to reveal monies that were hidden/preserved with her. I stated that I am selling to her.”

והאחין שחלקו – and each one held possession of his portion and they cannot retract.

והמחזיק בנכסי הגר – [the convert] who died and he no inheritors. And whomever comes first to take possession of his properties, takes possession.

נעל – that he made a door.

וגדר –[or] he made a wall.

ופרץ – or made a breach in it.

משלשין ביניהם – each band pays one-third, for they are three bands for the three years (i.e., two plotting/scheming witnesses for each year).

If two testify that he has had the use [of property] during three years and they are found to be false witnesses, they must make full restitution to the owner.
If two [false witnesses] testify of the first year, two of the second, and two of the third, they divide up the costs of restitution between them.
If three brothers testify and another is included with them, they offer three different acts of testimony, but their words count as a single act of testimony when the evidence is proved false.
In mishnah four we learn the consequences of falsely testifying with regards to possession for three years.
According to Deuteronomy 19:19 the punishment for testifying falsely is that punishment which would have been meted out on the defendant. In our mishnah, witnesses falsely testify that a man had three years possession of a field. Had they been telling the truth the field would have changed from belonging to the original owner to belonging to the possessor. In other words, through their testimony they caused a field to transfer from one person to another. In such a case, if they testified falsely, they would have to pay the cost of the field to the original owner. They tried to make him lose a field now they have to pay him the cost of a field.
Section two deals with a scenario where three sets of witnesses testify to possession, each testifying to one year. Together they can establish that he had three years possession and now owns the land. If they were found to be false witnesses they will collectively pay the punishment of paying the original owner the value of the field.
In order to understand section three we must mention that relatives are not allowed to testify together in order to make up the required two or more witnesses. In the case discussed in this section three brothers testified to the possession of the field, each brother to a different year. In addition, one person testified to all three years. In total, two people testified with regards to each year, and no single year was testified to by two brothers. In this case their testimony is accepted as three different testimonies, and therefore we do not have a problem of brothers testifying together. However, if they are lying, it is considered to be one testimony, with regards to making compensation to the original owner. The person who testified to all three years will pay half of the value of the field and the three brothers will together pay half, each brother paying one-sixth.

שלשה אחים – for each year, one brother, and another person with the brother, and that other person testifies with all of them and there three [distinct] testimonies, for what this one testifies, the other did not testify, and therefore, their testimony is valid.

והן עדות אחת – regarding the conviction of false witnesses, if they were found to be refuted, they divide up the cost between them, and they are not made false witnesses until all of them are proved to be false witnesses.

שיש להם חזקה – if he had taken possession of his fellow land for this purpose for three years, it is considered possession.

Introduction The mishnah which we will learn today continue to deal with establishing ownership by possession (chazakah), the subject of the entire third chapter. Our mishnah teach the types of activities which if done for three consecutive years without the protest of the owner of the land, house or courtyard or courtyard, may continue to be done afterwards, even if the owner were to protest. For instance if Reuven does a certain activity on Shimon’s property for three years and Shimon does not protest, he cannot do so at a later date.

היה מעמיד במהתו בחצר – this Tanna/teacher is speaking of a jointly owned courtyard, where they are not strict with each other concerning keeping cattle [in the courtyard] and other similar things. And because of this, it is not considered a presumption of possession even though he had possessed that thing for three years.

What are usages which are effective in establishing title through possession and what are usages which are not effecting in establishing title through possession? If a man put a beast in a courtyard, or an oven or stoves or mill-stones, or reared fowl [in a courtyard] or put his manure in a courtyard, this is not effective in establishing title through possession. But if he built for his beast a partition ten hand-breadths high, so too for an oven, so too for a stove, so too for a mill-stone, [or] he brought fowl inside the house, or prepared for his manure a place three hand-breadths deep or three hand-breadths high, this is effective in establishing title through possession. Our mishnah lists certain type of acts which if done on another person’s property for three consecutive years, acquire automatic subsequent permission to continue to do the activity. In other words, after three years there is an assumption that the owner of the property does not mind the other person doing these activities, and he therefore loses his right to subsequently protest. In section 1a we learn that placing an animal or other object in another’s courtyard will not cause entitlement to do so. For instance if Reuven were to use Shimon’s courtyard for three years as a place for his animal and Shimon were not to protest, Shimon would still retain the right to protest later. In section 1b we learn that if Reuven had built a structure on the property of Shimon, and Shimon had not protested for three years, Shimon now loses the right to protest. We assume that if Reuven used the property for such a long time in such a substantial manner, than it is does not bother Shimon and he cannot later change his mind.

אבל אם עשה מחיצה וכו' – for in such a manner, he is definitely strict. If he had been silent about this for three years and didn’t protest, it is considered possession. But Rabbi Moshe ben Maimonuni commented that a joint owner who is strict about making a partition and no one protested immediately is considered possession. But even though he made a partition, as a mere individual and no one protested, it is not considered possession until after three years.

מרזב – a small spout, that they place it at the end of the large spout that goes all around the perimeter of the roof.

Introduction Mishnah six continues to discuss what types of activities can create chazakah.

אין לו חזקה ויש למקומו חזקה – if there was a there a spout and the owner of the courtyard came to uproot it completely, so that the water of he roof would not spill into his courtyard, he is not able to do so, for he already has possession for this that the root waters spill via that spout, but if he comes to reverse it, that it was placed in the southern direction and he comes to place it in the northern direction, the owner of the movable tube attached to the roof gutters cannot delay it, for it is not something that causes him loss, and he lacks possession, for it will always stand in that direction.

Our mishnah continues to discuss the same issue as we discussed in the previous mishnah: which acts entail possession in order to establish the right to continue to do the acts after a period of three years. If the act is considered a sign of possession than the owner of the item can tell others that they may not use the object. Since if another person uses the object he will establish the right to continue to do so in the future, it makes sense that the owner can prevent them from usage in the present. If, however, the act is relatively insignificant, and will not lead to the right to continue to do the act in the future, than the owner cannot prevent others from doing so in the present. We will now explain each section separately.

מרזב – the place where the drop of rain water flows from it. [The word] מר /bitter is a טפה/droop, like (Isaiah 40:15): “The nations are but a drop in a bucket.”

A gutter spout cannot cause title through possession [so that the spout may still be moved] but title through possession may be claimed to its place [so that the place must be left for its present purpose]. A gutter spout is a tiny pipe on the edge of a larger gutter pipe which would be on the roof to allow drainage of water. If the spout, which belongs to one person, is draining into another’s courtyard the owner of the courtyard can direct the spout out of his courtyard and this will not establish possession over the spout. He cannot, however, totally remove the spout for the mere existence or non-existence of the spout is a sign of possession. If he were to remove the spout and the owner were not to protest, the owner would not be able to protest after three years.

מזחילה – a large spout that supports all the length of the roof. This is a something fixed, therefore it has presumed possession.

A gutter can give title through possession. A gutter (larger than the spout) is a sign of possession. Therefore the owner of a courtyard cannot even direct another person’s gutter, for if the owner were not to protest after three years he would lose his right to do so.

סולם [המצרי] – small and is not fixed, and no one is strict about it if one puts it into the courtyard of his fellow in order to ascend on it to his roof or to the dovecote. Therefore, it does not have presumption of possession.

An Egyptian ladder cannot give title through possession but a Tyrian ladder can. An Egyptian ladder is a small ladder used on a temporary basis. Placing one in another person’s courtyard is not a significant act. If Reuven were to place his Egyptian ladder on Shimon’s property for three years, Shimon could still protest after three years. However, the use of a Tyrian ladder, which is large, is a significant act. If a person were to use it in another’s courtyard for three years then the owner of the courtyard could not subsequently protest.

חלון המצרי – a small window where the head of person cannot enter it,

An Egyptian window cannot give title through possession but a Tyrian window can. What is an Egyptian window? Any through which a man’s head may not enter. Rabbi Judah says: “If it has a frame, even though a man’s head cannot enter through it, it can give title through possession.” An Egyptian window is a small window. If Reuven were to open an Egyptian window in the wall of his courtyard and it were to exist for three years, Shimon could still subsequently block the window. Even though Shimon did not protest for three years, there are no subsequent rights caused by a small window. However, a Tyrian window which is large, does cause subsequent rights. If Reuven were to open a Tyrian window in the wall of his courtyard and it were to exist for three years, Shimon could not subsequently block the window. If he wished to protest he should have done so during the three years.

he has no presumption of possession, but if the owner of the courtyard wanted to build opposite the widow and to close it up, the owner of the window cannot say: “I have already taken possession of it and you cannot close it up.” And he said to him this: “You were not appeased other than that I didn’t have any damages in it, and even so, if he had wanted from the outset, when he opened it up, he could have delayed it that he would not open it. And even if it was higher than four cubits, for he could have said to him, lest you place a small bench near the window so that you can look at me, and after he placed it [also] he opened it, he has no presumption of possession.

A projection, if it extends a handbreadth or more can give title through possession, and the other [into whose premises it projects] can protest against it. But if it is less than a handbreadth it cannot give title through possession and the other cannot protest against it. If Reuven were to build a wall that had a projection on it, such as a stray piece of wood or stone, longer than a handbreadth and that projection were to extend onto Shimon’s property, and Shimon did not protest for three years, he could no longer protest. Since this is an intrusive projection, we also allow Shimon to force Reuven to take it down, provided he protest within three years. A smaller projection is different. If it were to extend less than one handbreadth into Shimon’s property, Shimon may not protest. However, even after three years Shimon could take down the projection, or otherwise block it, since there is no assumption of possession.

ולצורית יש לו חזקה – a window where the head of a person can enter into it, and even where it is higher than four cubits, or a window that is made of for its light, and even if it is very small, or a window which is lower than four cubits, each one of these three windows, if he left it and opened it, he has possession, but furthermore, he is not able to build opposite it and close it up, for there is possession for damages except for fumigating and dust and the bathroom, meaning to say, bad smell, for these three [things] do not have presumption of possession, even if he held them several years. But damage is a proof that he has possession, and he doesn’t need possession for damages for three years but when damage occurs, in order that he can say to the one who suffered damage: “you already knew of this damage and didn’t protest, this is possession.

מלבן – a building from outside like a kind of lintel from above or a lower door-sill from below.

זיז – wood or stone that projects out from its wall to the airspace of his fellow’s courtyard. If it has a handbreadth or more, he has possession and the owner of the courtyard opposite to him cannot build to close the projection [serving as a shed over the entrance], after he has taken possession of it.

ויכול למחות בו – when the owner of the wall comes to remove the projection which has a handbreadth or more, the owner of the courtyard can protest it that he should not remove it.

פחות מטפח – this is not a matter of being fixed. Therefore, he does not have possession, and he can build opposite him and close it up, and when the owner of the wall comes to remove it ab initio, the owner of the courtyard cannot prevent it.

לחצר השותפים – into a courtyard which has joint ownership of it, and all the more so, to the courtyard of his fellow because of the damage of sightlines.

Introduction Mishnayoth seven discusses things a person builds on his property that might damage other people’s property in an indirect manner. Specifically it deals with a person building a window or door which would allow him to see into another’s property. This and the following mishnah are not related to the subject of the chapter. Rather they relate to the subject of the second chapter.

לקח בית מחצר אחרת – that is next to his this courtyard which has joint ownership, he should not open for himself a door to that courtyard, for there is a great deal of foot traffic from those who dwell in that house.

In order to understand our mishnah we must remember that in the times of the Mishnah houses were built around a common courtyard. A person would have joint ownership of that courtyard with the other house owners whose homes also opened into the courtyard (see the diagram below).

בונה חדר לפנים מביתו – which does not add anything, but divides his home into t, for without this, he could fill his house with inhabitants/tenants if he wanted.

One may not make a window to open into a jointly held courtyard. A person should not open a window in his home which would look into the jointly held courtyard. The mishnah wishes to prevent the situation where other people could see into a person’s home.

פתח כנגד פתח – as it states in the Biblical verse (Numbers 24:2): “As Balaam looked up and saw Israel encamped tribe by tribe.” What did he saw? He saw that their openings [of the tents] were not directed one opposite the other (allowing people to see inside each other’s tent).

If he bought a house in another [and adjoining] courtyard he may not open it into a jointly held courtyard. If Reuven owned a house and held joint ownership over courtyard a and then bought a house that opened to courtyard b but was also adjacent to courtyard a, Reuven may not open the new house to courtyard a. The problem is that by opening a new house to the courtyard he will increase the number of people participating in that courtyard. In such a case the neighbors who share courtyard a may protest. Neighbors Courtyard a Reuven’s current house Reuven’s new house Neighbors Courtyard b Neighbors Courtyard a courtyard a potential opening Neighbors Courtyard b courtyard b Neighbors Courtyard a Neighbors Courtyard a Neighbors Courtyard b Neighbors Courtyard b

קטן לא יעשנו גדול – for he said to him: “with a small opening, I can be private (i.e., protect myself) from your gaze; with a large opening, I cannot be private (i.e., protect myself) from your gaze (see Talmud Bava Batra 24aa and 60a).

If he built an upper room over his house he may not make it open into the jointly held courtyard; But, if he wishes, he may build another room within his house or build an upper room over his house and make it open into his own house. For similar reasons to those mentioned in section two, a person may not make a second floor in his home and make it open into the courtyard. If he were to rent this second floor to another family he would increase the number of people participating in the courtyard. He may, however, divide his house and add a room or build a second floor and have it open into his own house. Although this too will increase the number of residents, since a person could in theory rent out his house to as many residents as he wishes he can also add more rooms to his house, so long as he doesn’t make a new opening to the courtyard.

אחד לא יעשנו שנים – for he said to him; with one opening I can be private (i.e., protect myself); with two, I cannot be private (i.e., protect myself).

In a jointly held courtyard a man may not build a door directly opposite another’s door, or a window directly opposite another’s window. If the window was small he may not make it larger; if it was a single window he may not make it into two. Here we learn that a person may not build a door or window opening into a jointly held courtyard, if that window or door will allow people to look from one house into the other through the courtyard. He also may not expand the window by making it larger or by turning one window into two.

אבל פותח הוא לרשות הרבים – for he said to him, that finally, you are able to be private from the members of the public domain.

But in the public domain he may open a door opposite another’s door, or a window opposite another’s window. If the window was small he may make it larger; if it was a single window he may make it into two. A person may however make a window in his home that is opposite a window in a house on the other side of the public domain. Since the other person in any case had to be careful from people in the public domain peeping in, a window from a private home does not create further damage.

אין עושין חלל תחת רשות הרבים – even if he accepted upon himself every blast/wind that comes from the consequences of this, for people do not want to cause damage and to go to court to judge on the matters of their money.

Introduction Mishnah eight deals with permitted and not permitted damages that an individual might create to the public domain.

רבי אליעזר מתיר – as long as they cover it with force in order that a wagon carrying stones will travel upon it, and we should not worry lest sometimes the covering will be ruined. But the Halakha is not according to Rabbi Eliezer.

One may not hollow out a space underneath the public domain [such as] cisterns, trenches or caves. Rabbi Eliezer permits it if it is such that a wagon loaded with stones can [safely] go over it. One may not dig out a space underneath the public domain lest the ground crash in. According to Rabbi Eliezer if the ground is strong enough one may do so.

זיזין – small floor beams.

Projections and balconies may not be built into the public domain; but if a man wishes to build a [projection or balcony] he may withdraw [his wall] within his own domain and build out from it. If he bought a courtyard in which were already projections and balconies, his right to maintain them may not be disputed. One may not build projections of any nature into the public domain, but one may pull back his property and build a projection out from there. If he bought property that had such projections we assume that they were not built on public property and we do not make him remove the projections.

גזוזטראות – large beams lest the members of the public domain stumble against them.

Questions for Further Thought:
• Why might one have thought that it is forbidden to build a projection or a balcony even within one’s own property?

כונס לתוך שלו – brings into his land like the measure of the removal of the small floor beams and take them out.

הרי זו בחזקתה – we load them for the purchaser and we state that the person who sold it to him and brought them into his own [home].