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Bava Basra 2

1) "THE" PARTNERS

QUESTION: The Perek begins with the word, "ha'Shutafin" -- "*the* Shutafin." TOSFOS in Kidushin (2a) proposes that a Perek begins with the definite article "the" only when the subject of the Mishnah is mentioned in the verse. The Mishnah uses the word "the" to point out that it is referring to the subject that is mentioned already in the verse.

According to this, how is the word "the" justified with regard to "ha'Shutafin?" Where are the laws of "Shutafin" mentioned in the Torah such that the Mishnah is referring to that place when it says "*the* partners?" (TORAS CHAIM)

ANSWERS:

(a) The TORAS CHAIM answers that the definite article "the" of "ha'Shutafin" is not referring to the partners mentioned anywhere in the Torah, but rather to the partners mentioned at the end of the previous Masechta. As Tosfos (DH ha'Shutafin) writes, Bava Basra is arranged after Bava Metzia because the end of Bava Metzia discusses the laws of "Shutafin" in a case in which one partner owns the ground floor of a house and one owns the second floor.

(b) The CHASAM SOFER answers that the division of jointly-owned property is mentioned clearly in the verse. The Torah (in Devarim 1:16) commands judges to rule justly between "a man and his brother and Gero." RASHI there cites the Midrash which translates "Gero" as a neighbor and which explains "brother" to mean that the brothers are coming to court to divide property that they inherited.

2b

QUESTIONS: According to the opinion that the "Mechitzah" mentioned in the Mishnah refers to a wall (and not a mere division), the Gemara asks why the Mishnah does not say, "Bonin *Oso* b'Emtza." Why does it have to repeat the word "Bonin Es *ha'Kosel*" if it already mentioned that the partners build a wall ("Mechitzah")? The Gemara answers that if it would have said "Oso," then we might have misunderstood the Mishnah to mean that the partners agreed to make a division ("Chalukah") and it does not mean that the partners agreed to build a wall, but that they build "it" ("Oso"), meaning a simple fence ("Mesipas") to demarcate the border when they split the Chatzer. (This is how Rashi (DH Havah Amina) explains the Gemara's answer.)

The Mishnah therefore uses the word "Kosel" to teach that the partners agreed to build an actual wall and not merely to make a division. If one does not agree to build a wall, the other cannot force him to build it, because "Hezek Re'iyah" is not considered Hezek.

(a) Why is the Tana of the Mishnah concerned that we might misunderstand the Mishnah in such a manner? Even if we did understand the Mishnah to be saying that if the partners agreed to split the Chatzer they must build a Mesipas, it would still be evident that Hezek Re'iyah is not considered Hezek, since it suffices to build a simple Mesipas! (MAHARAM)

(b) How could we possibly have understood that the Mishnah is referring to building a Mesipas and not a full-fledged wall? The Mishnah continues and says that if the custom in the place is to build with "Gevil" bricks or other types of brick, then the partners must build the wall in such a manner. This is clearly referring to a proper wall and not a Mesipas (which is comprised merely of poles thrust into the ground, as Rashi (DH v'Ta'ama) writes)! (TOSFOS DH Havah Amina; Tosfos explains the Gemara differently from Rashi because of this and other questions.)

ANSWERS:

(a) The MAHARAM answers that it is true that the alternate reading would also teach us that Hezek Re'iyah is not considered Hezek. However, it would not teach us the second point of the Mishnah, which the Gemara tells us in the next Sugya. The Mishnah is teaching that if one of the partners prevails upon the other to agree to build a wall, the second partner cannot claim that he agreed only to help build the wall but not to have it take up any space in his part of the land. Rather, they must build the wall equally on both of their portions of land. We can only learn this point from the Mishnah if the Mishnah is discussing a partner who persuaded the other partner to build a thick wall (which takes up space) and not just a Mesipas (which takes up virtually no space). That is why the Mishnah emphasizes that they must "build a *wall* (Bonin Es *ha'Kosel*) in the middle." (This answer is not consistent with the way we will answer the second question. The Maharam also gives a second answer, as follows.)

Another approach might be that Rashi does not mean that if the Mishnah would have said "Oso" then the word "Mechitzah" would be referring to a division. As Tosfos asks, this opinion already rejected the possibility of translating "Mechitzah " as "division." Rather, "Mechitzah" would still mean a physical partition, but it would not be referring to a solid partition like a wall, but to a minimal partition like a Mesipas (see CHASAM SOFER). Therefore, the Mishnah would not imply that Hezek Re'iyah is not considered Hezek, since the reason it is not necessary to build a wall is because both of the partners agreed that a Mesipas will suffice.

The Maharam gives a second answer and says that if the Mishnah had said that when they agree to divide the land a Mesipas would suffice, we would not have known that Hezek Re'iyah is not considered Hezek. Perhaps the reason a Mesipas suffices is because the reluctant partner can claim that he only agreed to have the field split (even though it is "Ein Bo Kedei Chalukah") but that he did not agree to share the expenses of building a wall. However, when the Chatzer *is* large enough for one partner to force the other to divide ("Yesh Bo Kedei Chalukah"), then perhaps one partner can force the other to build a wall because of Hezek Re'iyah. The Mishnah therefore emphasizes that even when the Chatzer has "Kedei Chalukah," each must agree to build the wall (because Hezek Re'iyah is not considered Hezek).

(b) The RASHBA answers the second question by saying that according to Rashi, had the Mishnah not said "Bonin Es *ha'Kosel*," we would have understood the words of the Mishnah, "in a place where the custom is to build with Gevil...," to be discussing a different case than the case discussed in the beginning of the Mishnah. In the beginning of the Mishnah, the Mishnah is referring to a case where the partners agreed only to divide the land, but not to make a wall between them. In that case a Mesipas suffices. The second case of the Mishnah refers to where they agreed to build a wall between them. In such a case, they must build the type of wall that is customary built in that place. (According to this answer, the second part of the Mishnah teaches that they build the wall in the middle even in a case where the partner's agreement is necessary in order to build the wall. This is a weakness in the first answer of the Maharam, who says that we would *not* have been able to learn this Halachah from the Mishnah, if it had not said "Kosel" in the Reisha.)