Commento su Bava Metzia 10:11

הבית והעליה של שנים – the house belongs to one of them and the upper story belongs to the other.

Introduction Chapter ten of Bava Metziah deals with laws concerning neighbors, a subject that the mishnah will continue to discuss in the first two chapters of Bava Batra (proving that originally these two tractates were part of one larger tractate which included Bava Kamma as well. This tractate was called “Nezikin”). Our two mishnayoth deal with two people who jointly own a house, one owning the second story and one owning the first.

שניהם חולקים – because it is not known that these stones are of the upper story and those are from the lower part.

If a house (the first and an upper room (the second belonging to two persons (each owning fell down, the two share in the wood and the stones and the earth. And they consider which stones were the more likely to have been broken. If one of them recognizes that some of the stones were his, he may take them and they count as part of his share. In order to understand the importance of this mishnah we must remember that in the time of the mishnah building materials, especially stone and wood, would have been scarce and therefore expensive, especially in the Land of Israel. When a building collapsed the broken materials would have been reused, either to rebuild the house or for other purposes. Our mishnah discusses to whom do these materials belong, in the case where the upper story was owned by one person and the bottom story by another. In general the two persons split the material under the assumption that half was used for the construction of the top story and half for the bottom. Beyond knowing that the two partners split the material, it is also necessary to decide which partner takes which stones. After all, in some cases some of the stones may be more valuable than others, such as broken stones versus whole one. To that end the mishnah makes two suggestions. 1) They try to determine which part of the house broke, and therefore who gets the broken stones. For instance if the house broke at its foundations the owner of the bottom floor gets the broken stones. If it broke from above, the owner of the top floor takes the broken stones. 2) If one of the partners recognizes his stones, he takes those stones and the other takes other stones. The mishnah further clarifies that these recognized stones count as part of the share of the one who recognizes them.

ורואים אלו אבנים הראויות להשתבר – if the house was crushed from its foundations and fell below it, one can know that the lower stones were broken. But if the upper part of the wall fell there from it a lot, the upper [stones] broke, since they fell from a high place, and the lower ones [remained] whole, since they fell from a low place. And [from] the first part [of the Mishnah] where it is taught that both of them divide it, is speaking about when the wall fell at night and they removed/cleared away the stones immediately, and it is impossible to establish if it fell through pressure and the bottom ones broke, or through seizing an object violently to take possession [caused them] to fall and the upper ones were broken (Bava Metzia 116a).

Questions for Further Thought:
• Mishnah one: Why would you think that the stones which one of the owners recognizes does not count as part of his share? In other words, why might the last statement of the mishnah not be obvious?

מקצת אבניו – and they are whole.

נוטלן – such as the case that this one claims that with some of them (i.e. the stones), it is truth, and with some, he states that he doesn’t known, for since he admits to part [of it], he is liable for an oath according to the Torah, and he is unable to take an oath, and whomever is liable for an oath and is not able to take an oath must pay. But if he said concerning all of them that he did not know, he should take an oath that he did not know and divide them (i.e., the stones) equally with his fellow.

הבית והעליה – He who leases out the upper story that is on top of his house to his fellow and says to him: “the upper story that is on top of this house, I lease to you, and the upper story opened up [a hole] of four handbreadths by four handbreadths (according to Shmuel – Bava Metzia 116b) for now, if this one (i.e., the one who has been leased the upper story) needs to use the upper story, he must use half of it above and half of it below.

If there was a house (the first and an upper room (the second belonging to two people, and the [floor of the] upper room broke and the owner of the house (the bottom did not want to fix it, the owner of the upper room may come down and dwell below, until the owner [of the bottom story] fixes [the floor of the] upper room. Rabbi Yose says: “He that dwells below should provide the beams and he that dwells above the plastering. As in the previous mishnah, in mishnah two one person owns the bottom story and another owns the top story. However, here, instead of the whole building collapsing as occurred in mishnah one, the ceiling of the bottom story, which also serves as the floor of the top story collapses. According to the first opinion in the mishnah the owner of the bottom story is obligated to fix the ceiling/floor and until he does so the owner of the top story may occupy the bottom story. Rabbi Yose disagrees and states that the two partners must share in the building of the ceiling/floor. The owner of the bottom story provides the wooden beams and the owner of the top provides the plaster.

ואין בעל הבית רוצה לתקן – the upper story.

Questions for Further Thought:
• Mishnah two: What is the basis of Rabbi Yose’s disagreement with the first opinion? Why doesn’t Rabbi Yose think that the owner of the bottom floor should be responsible for providing the entire ceiling/floor?

הרי בעל העליה יורד ודר למטה – completely [lives downstairs] , for he had prepared the house for the upper story. And we do not force him to live half above and half below.

מעזיבה – plaster of mud/clay that they place on the ceiling. Rabbi Yose holds (Bava Metzia 117a) that the concrete of stone chippings and clay serves to level the depressions, and it levels the depressions of the upper story floor. But the Rabbis hold that the concrete of stone chippings strengths the ceiling, and the strengthening of the ceiling is required to be done by the lower dweller. And the Halakha is according to the Sages.

הבית והעליה של שנים – the house belongs to this one and the upper story to the other.

If a house (the bottom and an upper room belonging to two persons (each owning fell down, and the owner of the upper room told the owner of the house (the bottom to rebuild it, and he did not want to rebuild it, the owner of the upper room may rebuild the house below and live in it until the other repays him what he has spent.
Rabbi Judah says: “He would then [after being reimbursed] have been dwelling on his fellow’s property and he should [therefore] pay him rent. Rather the owner of the upper room should rebuild both the house below and the upper room and put a roof on the upper room, and live in the house below until the other repays him what he has spent.”
Mishnah three continues to deal with a situation in which one person owns the bottom story of a house and another owns the top story, and the house collapses. In the scenario in this mishnah the owner of the bottom story refuses to rebuild his share, thereby preventing the owner of the top story from rebuilding his share.
Mishnah four deals with a case similar to that in mishnah three, except instead of a house here one person owns an underground olive press and another person owns a garden planted above the olive press, and the olive press collapses.
In the scenario in our mishnah after the entire house fell, the owner of the upper room wants to rebuild it so that he can return to live there, but the owner of the bottom story refuses to rebuild his share, thereby preventing the former from rebuilding his share. According to the opinion in section one, the owner of the upper room may rebuild the bottom story and live in it until its proper owner repays him for his expenses. Once the bottom story is rebuilt the owner of the upper room will be able to rebuild his share and live there.
According to Rabbi Judah, in this scenario it would turn out that the owner of the upper room had lived on the property of the owner of the bottom story without paying him rent. After all, at this point the upper room no longer existed and its owner therefore could not have lived there. Although the owner of the lower story should have rebuilt the house, he was not obligated to rebuild it and let the owner of the lower story live there for free.
Rather the owner of the upper room should rebuild the entire house, including the upper room, but live in the bottom story until it owner repays him for his costs. In this way the owner of the lower story could not claim from him rent, since while he was living there he had the upper room at his disposal.

אמר בעל עליה לבעל הבית לבנות – the wall and the lower ceiling that are upon him to built

בונה בית – and the lower ceiling that is upon it, and dwells in the house until he (i.e., the person who lives in the lower area of the house) compensates him for his expenditures, and afterwards, he leaves and builds his upper story.

אמר רבי יהודה אף זה דר בתוך של חבירו – if this is the case, the owner of this upper story in this case compensates him for what he has spent, it is found that he is living all these days in [the section] of his fellow, and even though he is not without that, he would not have built it; nevertheless this one is benefitting, for were it not for this house, he would not have had a place to live there. And he holds that this one benefits and this one is not lacking, he is liable. But he builds it all.

ומקרה את העליה – above him and all that is necessary for it.

ויושב בבית – [in] the lower [house], for he would have that this one doesn’t benefit, for the upper story was ready for him to live in it and the other person is not lacking anything, for had he not built it, it would not be appropriate for him.

בית הבד – a house to gather olives.

So, too, if an olive press was built in a rock and another had a garden on top of it, and [the olive press] was in part broken down, the owner of the garden may come down and sow below until the other rebuilds the ceiling of his olive press. This scenario is similar to the scenario in the previous mishnah, but instead of a house with an upper room, this mishnah deals with an olive press that has a garden growing on top of it. Should the roof of the olive press collapse, the owner of the garden is permitted to plant below until the owner of the olive press rebuilds the ceiling. Note how valuable space was in the Land of Israel. People would use any possible land to garden, even land which had on olive press beneath it. Much of the land of Israel is not arable, particularly the mountainous regions and the desert. This is still true in Israel today.

וגנה אחת על גביו – and the olive press belongs to one [of them] and the garden is of the other.

If a wall or a tree fell into the public domain and caused damage, the owner is not liable to make restitution. If a set time had been given to him to cut down the tree or pull down the wall, and they fell down within the time, he is not liable. If after that time, he is liable. This section of the mishnah does not deal with shared property as in the previous portions of the chapter but rather with a property owner’s responsibilities and liabilities with regards to the public domain. According to the mishnah if a person’s wall or tree fell into the public domain and thereby caused damage he is not liable. This is a case where he had no way of knowing that his tree or wall would fall, and therefore he cannot be held accountable. If, however, he had been given a warning by the court and told to either remove his tree or wall, or make them safer, and the time for doing so had elapsed, he will be subsequently liable for any damage done by the tree in the public domain.

ונפחת – (see Bava Metzia 118a) four handbreadths by four handbreadths and it is not worthy to sow as at first.

Questions for Further Thought:
Mishnah four, section one: What is the difference between the scenario in this section and that in the previous mishnah?

כיפין – a ceiling made in a circle like a rainbow and upon it, the owner of the garden places dust/mud and plants.

פטור מלשלם – for what was he to do, as it was an unavoidable accident.

נתנו לו זמן – A Jewish court; thirty days to tear it down and cut it {i.e., the tree) down.

ונפל – into midst of the garden of his fellow.

Introduction Mishnah five can actually be divided into two distinct units: sections one and two, and sections three through five. The first unit begins with a situation in which one person’s wall fell into another’s garden. Instead of clearing his fallen stones the owner of the wall wishes to compensate the owner of the garden by giving him the fallen stones. Section two deals with a similar scenario in which an employer wishes to compensate his employee by giving him some of the product instead of giving him his wages in money. Sections three through five all deal with environmental damages done to the public domain.

הגיעוך – take possession of them and clear them for yourself.

If one’s wall was near his fellow’s garden and it fell down and his fellow said to him, “Clear away your stones”, and he answered, “They have become yours”, they do not listen to him. If after the other (the owner of the had accepted he (the owner of the said to him, “Here is your expenditures and I will take back what is mine”, they do not listen to him. In the scenario in section one a person’s wall collapsed into another person’s neighboring garden. In a typical situation it would be the owner of the wall’s responsibility to clear the stones, but they would nevertheless still belong to him. If the owner of the wall were to say to the owner of the garden that the latter may keep the stones, and thereby exempt himself from the responsibility of clearing them, he is not listened to. In other words the owner of the garden can force the owner of the wall to clear his stones. If the owner of the garden were to accept the offer and take the stones, the owner of the wall cannot later change his mind and force the owner of the garden to return them. Even if the owner of the wall repays the owner of the garden for the work of removing the stones, he cannot force him to give them back. Once the deal is done, the owner of the wall does not have a right to revoke it.

אין שומעין לו – if this one doesn’t want, he doesn’t purchase them and this one is liable to clear them.

If one hired a laborer to help him in his work with chopped straw and stubble, and the laborer said to him, “Give me my wages”, and he said to him, “Take as your wages that with which you have labored”, they do not listen to him. If after the other (the had accepted he (the said to him, “Here are your wages and I will take what is mine”, they do not listen to him. In this scenario, in which the laws and language are similar to those in the previous mishnah, a person hires a worker to work [in his field collecting] straw and stubble. When it comes time to pay his wages the employer attempts to force the employee to accept the collected straw and stubble as the wages. The mishnah teaches that the employee need not accept such wages and may force the employer to pay him with money. If, however, the employee accepts the straw and stubble as his wages, the employer may not later change his mind and attempt to recover the straw and stubble by paying the employee his wages in money. Again, once the deal has been accepted the employer has no subsequent right to revoke it.

בתבן ובקש – to gather them of his own, or from something ownerless.

One who removes his manure into the public domain: from the time he removes it another may take it to manure [his fields]. For obvious reasons, one may not remove his animal manure into the public domain. If one did so, the manure, which in their time was considered valuable, became legally ownerless and anyone could come and claim it as their own.

אין שומעין לו – even though that it in every place we have what is equivalent to money is like money, concerning a hired worker, it is not like this, for it is written (Leviticus 19:13): “The wages of a laborer shall not remain,” on what that he makes a condition explicitly is implied.

One may not soak clay or make bricks in the public domain, but clay may be kneaded in the public domain but not bricks. Similarly, one is not allowed to make bricks or soak clay in the public domain, for these types of work would pollute property that does not belong to any one person. The mishnah does allow him to mix the clay in the public domain, for the clay would immediately be used in the building process. This type of mixing is brief as opposed to the original soaking of the clay which is a longer process and therefore forbidden in the public domain. Similarly making bricks takes a considerable amount of time and is therefore forbidden in the public domain.

המוציא מוציא והמזבל מזבל – when this one brings it (i.e., the manure) from the cattle-shed to the public domain, the carrier brings it to manure, and he is not permitted to detain it there.

One who builds in the public domain: one brings the stones and another builds (. And if he causes damage, he pays what he has damaged. Rabban Shimon ben Gamaliel says: “He may, indeed, make preparation for his work for thirty days [in the public domain]. In order to build a house or other such structure in the private domain a person will often need to use the public domain to keep his wood and stones. The mishnah teaches that if one wishes to make such a use of the public domain, one person must bring the wood and stones and another build with them immediately. In other words it is forbidden to leave them there for an extended period of time. Furthermore, even though the mishnah permits using the public domain for such a purpose, if the person caused damage he is liable. Rabban Shimon ben Gamaliel disagrees with the opinion taught in sections four and five. According to Rabban Shimon ben Gamaliel one may use the public domain for up to thirty days to prepare building properties: bricks, clay, stones and other necessities.

גובלין טיט – to put it immediately into the building.

Questions for Further Thought:
• What is the nature of the public domain in the eyes of the author’s of the mishnah? What principles cause them to decide the law in such a manner? Would it be proper to consider the Rabbis to be environmentalists or do they have other factors motivating them?

והבונה בונה – he receives them from the person who brings them and builds.

מתקן – they are ready at hand in the public domain all thirty days, and he is not liable for damages. But the Halakha is not according to Rabban Shimon ben Gamaliel.

שתי גינות – of two people who are near one another. The one – his ground/plot is higher and the one near him, his ground/plot is lower.

Introduction The final mishnah of Bava Metziah deals with two people who own adjacent gardens, one garden being at a higher level than the other. In other words the gardens were terraced. The following illustration should help. Upper Garden Wall Lower Garden The mishnah deals with the issue of ownership over vegetables that grows from the wall separating the gardens.

והירק בינתים – in the rising of the elevation, that this one is higher than that one.

If there were two gardens [in terraces] one above the other and vegetables grew between them: Rabbi Meir says: “They belong to the upper garden.” Rabbi Judah says: “They belong to the lower garden.” Rabbi Meir said: “If [the owner of] the upper garden wished to remove his soil there would be no vegetables.” Rabbi Judah said: “If [the owner of] the lower garden wished to fill up his garden [with soil] there would be no vegetables. (1) Rabbi Meir said: “Since each is able to thwart the other, we should consider from where these vegetables derive their life.” Rabbi Shimon said: “Whatever [the owner of ] the upper garden can take by stretching out his hand belongs to him, and the rest belongs to [the owner of] the lower garden. In our mishnah both owners claim that the vegetables that grow on the wall between the two gardens belongs to them. Rabbi Meir says that the vegetables belong to the owner of the upper garden and Rabbi Judah says that they go to the owner of the lower garden. According to Rabbi Meir, since the owner of the upper garden could remove the soil and thereby remove the vegetables they must belong to him. According to Rabbi Judah, since the owner of the lower garden could fill his garden with soil and thereby kill the vegetables, they must belong to him. In clause (1) Rabbi Meir agrees with Rabbi Judah that each side could thwart the other side. Nevertheless, Rabbi Meir sticks to his opinion, that the vegetables belong to the owner of the upper garden, since they derive their life from his soil and not from the air of the lower garden. The end of the mishnah contains the opinion of Rabbi Shimon, who reaches a compromise. If the owner of the upper garden could reach out his hand and grab the vegetables they belong to him. If not they belong to the owner of the lower garden.

של עליון – for it is his dust and it is from his that it absorbs.

Questions for Further Thought:
• How is Rabbi Meir’s argument in section 1a) different from his subsequent argument in section (1)?Congratulations! We have finished Tractate Bava Metziah!It is a tradition at this point to thank God for helping us to finish learning the tractate and to commit ourselves to going back and relearning it, so that we may not forget it and so that its lessons will stay with us for all of our lives.For those of you who have learned with us the entire tractate and the entire previous tractate, Bava Kamma, a hearty Yasher Koach (congratulations). You have accomplished a great deal in a short time and you should be proud of yourselves. Of course, we still have a lot of mishnah ahead of us. We will begin Bava Batra tomorrow!

של תחתון – that upon his empty space it is placed.

מאחר ששניהם יכולין למחות – so that there will not be these vegetables here, the upper one takes the dust, and the lower one to fill up his garden.

רואין מהיכן ירק זה חי – from the place that it absorbs and grows, to this one, it should be given.

כל שעליון יכול לפשוט ידו וליטול הרי אלו שלו – as Rabbi Meir stated, since it is from his dust that it lives.

והשאר של תחתון – for the upper [garden] itself has renounced ownership of it, regarding the bottom, for it is a disgrace for him to take permission to enter into [the garden] of his fellow and to take it. And the Halakha is according to Rabbi Shimon.