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Bava Basra, 7

1) A HOUSE THAT SINKS

QUESTION: The Gemara discusses a case in which a two-story house began to sink into the ground. The owner of the ground floor demanded that the owner of the upper floor help him rebuild the house, and the owner of the upper floor refused. Rav Chama ruled that the owner of the upper floor is not required to help the owner of the lower floor restore his dwelling, and he is not even required to move to a different house -- even at the expense of the owner of the lower floor -- in order to let the owner of the lower floor repair his dwelling at his own expense. However, if the house has sunk into the ground so much that the upper floor is now within ten Tefachim of the ground, the owner of the lower floor can force his upper neighbor to help him restore the house, since those ten Tefachim are the exclusive domain of the owner of the lower floor.

The ROSH explains that when the lower floor is left with less than ten Tefachim, the owner can force his upper neighbor to help him demolish the structure and rebuild it anew (before it sinks entirely into the ground).

Even though ten Tefachim is the minimum height necessary for living space (as the Gemara says in Sukah 3a), why, though, does the owner of the lower floor have no recourse until he no longer has ten Tefachim? Since he originally had, for example, twenty Tefachim of height in which to live, all of that space should be the exclusive domain of the lower neighbor! Once the upper floor encroaches into that height (of twenty Tefachim), the lower neighbor should be able to force the upper neighbor to help restore the house! Indeed, we see that the owner of the lower floor is entitled to the height he had originally from the fact that when they demolish the house and rebuild it, he is entitled to his original height. (ME'IRI, KOVETZ SHI'URIM)

ANSWERS:

(a) The ME'IRI cites in the name of the "CHACHAMIM HA'TZARFATIM" that the Gemara is referring to a case in which the two owners stipulated when they originally built the house that if the house sinks, then the upper neighbor will be entitled to live in the space of the lower neighbor. (This condition still does not entitle the upper neighbor to use the ten Tefachim of height from the ground, because then the lower neighbor will have nowhere to live.)

The Me'iri rejects this answer, saying that the Gemara makes no indication that any condition of that sort was made.

(b) The AYELES HA'SHACHAR answers that since it frequently happens that the foundation of a house sinks a little into the ground, it is not practical to force the upper neighbor to demolish the house and rebuild it every time it sinks a little into the ground. Only if it sinks so much that the lower neighbor no longer has ten Tefachim may he force the other owner to rebuild. (See YOSEF DA'AS.) (I. Alsheich)

QUESTION: Two brothers (Reuven and Shimon) divided property that they inherited. Reuven took a hall, and Shimon took the garden next to the hall. Shimon began building a wall on the garden between the garden and the hall. Reuven claimed that the wall would block his light, while Shimon claimed that the wall was on his own property. Rav Chama ruled that Shimon is entitled to build the wall.

The Gemara asks that even when Reuven compensates Shimon for the value of the stones and building materials that he received, and not for the right to open air-space and light, Reuven should still be able to claim that he initially accepted the hall with the understanding that it would be useful and have light, and now he is receiving only a dark room.

Rav Simi bar Ashi answers that even a darkened hall is still called a hall, and thus Reuven still has the same thing that he initially received. The Gemara cites a Beraisa to support this assertion. The Beraisa says that if a person sells an "orchard" to a purchaser, and it turns out that there are no fruits growing in the orchard, the sale is binding when such a field is called an "orchard."

The RASHBA asks that the Beraisa is no support for Rav Simi bar Ashi's answer. In the case of the Beraisa, the seller initially sold the orchard without any fruit in it. In the case of our Gemara, though, this brother initially received a hall with light, and only afterwards did the other brother take that light away by building the wall. It is comparable to a case in which one sells an orchard *with* fruit, and then the seller goes and picks all of the fruit. In such a case, the fruit certainly belongs to the buyer (even if a field with no fruit is also called an orchard)! Here, too, the first brother has also acquired the right to have light in his hall, and the other brother may not take it way from him! Why, then, does the Gemara bring support for Rav Simi bar Ashi's answer from the Beraisa?

ANSWER: The RASHBA answers that the comparison with the case of the Beraisa is indeed accurate. In the case of the brothers who inherited a hall and a garden, the brother who received the garden is not actively taking away the light that the other brother already received. Rather, he is indirectly causing the light not to reach the hall. Hence, the hall is effectively the same hall that he received initially.

The KOVETZ SHI'URIM explains that this explanation of the Rashba is the answer to TOSFOS' question on RASHI here. Rashi (DH b'd'Nafsha'i) writes that the owner of the garden may build his wall because the owner of the hall does not have a Chazakah of three years to have light in his hall. Tosfos asks how this could be a reason to permit the owner of the garden to completely darken the other's hall. The Kovetz Shi'urim explains that Tosfos' question is that the brother who is building the wall is actively damaging ("Mazik b'Yadayim") the other brother's property by blocking the light, even though he is building the wall on his own property.

Rashi, in contrast, learns like the Rashba, who explains that blocking light is not considered "Mazik," but rather it is an indirect result of building a wall. Therefore, the garden-owner is allowed to build the wall as long as the hall-owner has not established his rights to receive light with a Chazakah. (I. Alsheich)

7b

QUESTION: The Gemara relates that a certain Chasid built a Beis Sha'ar, an outer gatehouse, outside of his courtyard (preventing people from entering his courtyard). The Beis Sha'ar prevented poor people from entering the courtyard to collect charity. As a result, Eliyahu ha'Navi stopped speaking to the Chasid.

Why does the Gemara need to point out that Eliyahu stopped speaking to the Chasid? The Gemara should simply say that building a Beis Sha'ar which prevents poor people from entering is not a proper thing to do!

ANSWERS:

(a) The CHAZON ISH (4:7) explains that the Gemara is mentioning this incident in order to teach that when one reaches the level of Chasidus in his Avodas Hashem, he merits that Eliyahu reveals himself to him and speaks to him regularly. Conversely, if a Chasid acts uncharacteristically and does an act that causes a loss to poor people, Eliyahu refrains from speaking to him.

(b) The Chazon Ish writes further that had the Gemara not mentioned this incident, we might have thought that a person is not required to suffer a loss of privacy ("Hezek Re'iyah") and refrain from building a Beis Sha'ar for the sake of the poor people (so that they should be able to enter his courtyard). We might have thought that enabling poor people to enter one's courtyard is not part of the obligation of Tzedakah, if the homeowner suffers a loss of privacy as a result. This was the reasoning of the Chasid. Eliyahu taught him that it is Midas Chasidus to refrain from building a Beis Sha'ar when the poor people will suffer, even if not having a Beis Sha'ar will cause a loss of privacy to the homeowner (see YOSEF DA'AS). (I. Alsheich)