Babylonian Talmud: Tractate Baba Mezi'a

Baba Mezi'a 117a

When he [the tenant] dwells there [downstairs], does he dwell there alone, as formerly, or do both dwell there, because he [the landlord] can say to him, 'I did not rent it to you that you should evict me.' Now, should you say, both dwell therein, does he, when he makes use thereof, use it by way of the [lower] doors, or through the roof?¹  Do we say, It must be as originally: just as it was then by way of the roof, so now likewise. Or perhaps, he can say to him, 'I undertook to ascend, but not to ascend and descend.' Now, should you rule that he can say to him, 'I did not undertake to ascend and descend,' what of two storeys, one on top of the other? Now, if the upper one was broken through, he can certainly descend and dwell in the lower one; but if the lower one was broken through, can he ascend and dwell²  in the upper?³  Do we say, that he [the landlord] can say to him, 'You undertook whatever is designated ascending [whether a greater or a lesser height]'? Or perhaps, he undertook one ascent, but not two? — These problems remain unsolved.

R. JOSE SAID: THE LOWER ONE MUST PROVIDE THE TIKRAH AND THE UPPER ONE THE PLASTERING. What is the TIKRAH? — R. Jose b. Hanina said: The reeds, thorns⁴  and clay.⁵  R. Simeon b. Lakish said: Boards. But there is no dispute; each [speaks] in accordance with local usage.

Two dwelt [in a house], one above and one below. Now, the plaster [on the ceiling between the two] became broke, so that when the one above washed with water, it dripped down, causing damage to the one below.⁶  Now, who must repair? — R. Hiyya b. Abba said: The upper dweller; R. Elai said on the authority of R. Hiyya son of R. Jose: The lower one. Now, the sign thereof is, And Joseph was brought down to Egypt.⁷  Shall we say that R. Hiyya b. Abba and R. Elai dispute on the same lines as R. Jose and the Rabbis [in the Mishnah]?⁸  [Thus:] The ruling that the upper one must repair it is based on the view that he who inflicts the damage must remove himself from him who sustains it; whilst the opinion that the lower one must repair it agrees with the view that the injured party must remove himself from him who inflicts the injury!⁹  — Is it then reasonable [to maintain] that R. Jose and the Rabbis dispute with reference to damages? Surely we know them to hold the reverse! For we learnt: A tree must be removed [at least] twenty-five cubits from a pit.¹⁰  and in the case of the carob and the sycamore trees, fifty cubits;¹¹  whether it be above¹²  or level therewith. If the pit was there first, he must cut down [the tree], but [the pit owner] must compensate him. If the tree was there first, he need not cut it down. If it is doubtful which came first, he need not cut it down. R. Jose said: Even if the pit was there prior to the tree, he need not cut it down, for the one digs in his own, and the other plants in his own.¹³  This proves that in R. Jose's opinion the injured party must remove himself; whilst the Rabbis hold that he who inflicts the injury must remove! — But if it can be said that they [R. Hiyya b. Abba and R. Elai] dispute on the same lines as R. Jose and the Rabbis, it is on their opinions as displayed there. Then wherein do R. Jose and the Rabbis, of the present Mishnah, differ? — In the strengthening of the ceiling. The Rabbis maintain: the plaster strengthens the ceiling, and that is the duty of the lower dweller. Whilst R. Jose maintains that the plaster is for the purpose of levelling the depressions,¹⁴  and that must be done by the upper tenant.

But that is not so. For R. Ashi said: When I was at R. Kahana's college, we said, R. Jose agrees in the case of his arrows!¹⁵  — It means that the water was interrupted, and only subsequently fell down.¹⁶

MISHNAH. IF A HOUSE AND AN UPPER STOREY, BELONGING TO TWO,¹⁷  COLLAPSED, AND THE OWNER OF THE UPPER STOREY PROPOSED TO THE HOUSE OWNER TO REBUILD, WHILST THE LATTER DECLINED, THE FORMER MAY BUILD THE HOUSE [i.e., THE LOWER STOREY] AND DWELL THEREIN, UNTIL HE [THE LATTER] REIMBURSES HIM FOR HIS EXPENDITURE. R. JUDAH SAID: THEN THIS MAN INDEED SHALL HAVE DWELT IN HIS NEIGHBOUR'S HOUSE, AND SO MUST PAY HIM RENT.¹⁸  BUT THE OWNER OF THE UPPER STOREY MUST BUILD UP THE HOUSE AND THE UPPER STOREY AND ROOF IT OVER, AND THEN DWELL IN THE HOUSE UNTIL HE IS REIMBURSED.¹⁹

1. I.e., reaching as hitherto the upper storey by means of the specially provided ladder and thence descending into the house.
2. [Cf. Tosaf. Cur. edd. read instead 'entirely', which is rightly omitted in most texts.]
3. Where one of the two had been rented.
4. The thorns were presumably for binding the other materials by becoming entangled in them.
5. [So Aruch, reading [H]. According to Rashi, who preserves [H] of cur. edd., the word is a name of a Sage and is to be connected with what follows: 'Justinian in the name of Resh Lakish said.']
6. The ceiling itself, i.e., the planks, was unaffected, and the water dripped down through the cracks in the plaster. This was not a case of renting, but of two owners.
7. Gen. XXXIX. 1. This is a sign given to aid to memory: thus: Joseph (Jose) was brought down — rules that the lower one must repair.
8. For it was assumed that when R. Jose ruled that the tenant above must provide the plastering, it is in order that his water should inflict no damage upon the tenant below, it being the duty of the person who inflicts damage to remove himself from him who sustains it; on the other hand, the tenant below must furnish (i.e., repair) the ceiling itself, which is the floor of the upper storey, since that is an essential part of the storey which he rented to him. Whilst the first Tanna holds that the injured party must remove himself: therefore he, i.e., the lower dweller, must repair the whole ceiling, including the plastering.
9. As the Rabbis.
10. Because its roots undermine the earth, and if nearer, ultimately cause it to collapse.
11. Their roots are longer.
12. I.e., whether the pit is on higher ground than the tree, so that the roots go below it.
13. V. B.B. 25b and supra p. 630.
14. I.e., the ceiling of wood beams forms an unequal surface for the man above to walk upon, and therefore it is overlaid by a dressing of concrete chippings, which forms a smooth and level pavement.
15. Though R. Jose holds that the injured person has to remove, that is only where the injury does not come immediately and directly, as in the case of the pit and the tree. When the tree is planted, no damage at all is done; only later, when it is grown and its roots have spread, is injury caused. But when one washes his hands and the water falls through the crevices in the flooring upon the dweller below, the injury proceeds directly from above, as when a man shoots arrows, in which case R. Jose admits that the man who causes the injury must remove himself. How then can R. Hiyya b. Jose rule that the dweller below must repair the ceiling?
16. The place for washing was not directly over the broken portion but in some other part of the room, whence it trickled to the cracks, and only then dropped down. That is not direct and immediate injury.
17. v. p. 660, n. 1.
18. When the house-owner reimburses him, the house becomes retrospectively his. Now, in R. Judah's opinion, if A benefits from an article belonging to B, though B does not lose thereby, he must pay him. So here too, the owner of the upper storey has dwelt in the other's house, and though the latter lost nothing thereby, since had not the former built it he would have had no house in any case, the owner of the upper storey must nevertheless pay rent.
19. In this case, the house-owner sustains no loss, as explained in the previous note, but the owner of the upper storey does not benefit either, since he could live in his own garret; here R. Judah admits that no rent is payable. So Rashi. Tosaf., however, points out that he benefits by not having to climb stairs. Therefore, on a slightly different reading, Tosaf. translates: and then dwell in his upper storey, not permitting the other to enter the house until he is reimbursed.

GEMARA. R. Johanan said: In three places has R. Judah taught us that one may not benefit from his neighbour's property. One, what we learnt [in the Mishnah]. What is the second? — We learnt: If one gives a dyer wool to be dyed red, but he dyed it black, or to dye it black and he dyed it red; R. Meir said: He [the dyer] must pay him for the wool.¹  R. Judah said: If the increased value exceeds the cost [of dyeing], he [the wool owner] must pay him the cost; if the cost exceeds the increased value, he must pay him for the latter.²  And what is the third? — That which we learnt: If a man repaid a portion of his debt, and then placed the bond in the hands of a third party, declaring. 'If I do not repay the balance within thirty days, return the note to the creditor:'³  and the time arrived, and he did not repay. R. Jose maintained: The third party must surrender [the bond to the creditor]. R. Judah ruled: He must not return it.⁴  But whence [does it follow]? Maybe R. Judah states his ruling here,⁵  only because there is blackening [of the walls].⁶  Or, [in the second case] 'to be dyed red, but he dyed it black,' the reason is that he did otherwise [than he was instructed], and we learnt: He who alters [the contract] is at a disadvantage. Again, in the case of one who repaid a portion of his debt, it [the order to the third party] is an asmakta,⁷  and we thus learn that R. Judah holds that an asmakta gives no title.⁸

R. Aha b. Adda said on 'Ulla's authority: If the owner of the lower storey wishes to alter [the building materials from hewn] to unhewn stones, he is permitted; [from unhewn stones] to hewn stones, he is forbidden;⁹  [from whole bricks] to half-bricks,¹⁰  he is permitted; [from half-bricks] to whole bricks, he is forbidden; to ceil it with cedars,¹¹  he is permitted; with sycamores.¹²  he is forbidden; to diminish the number of windows, he is permitted; to increase them, he is forbidden; to elevate [the storey], he is forbidden; to decrease its height, he is permitted.¹³  Whereas if the owner of the upper storey wishes to alter to hewn stones, he is permitted; to unhewn stones, he is not permitted; to half-bricks, he is not permitted; to whole bricks, he is permitted; to ceil it with cedars, he is not permitted; with sycamores, he is permitted; to increase the number of windows, he is permitted; to diminish them, he is not permitted; to elevate the [upper storey], he is not permitted; to decrease its height, he is permitted.¹⁴]

What if neither possesses [the wherewithal for rebuilding]?¹⁵  (It has been taught: When neither possesses [money for rebuilding]. the garret owner has no claim at all upon the land.)¹⁶  It has been taught: R. Nathan said: The owner of the lower portion receives two-thirds [of the land], and the owner of the upper, one-third. Others say, The owner of the lower portion receives three-quarters, and that of the upper, one-quarter. Rabbah said: Hold fast to R. Nathan's ruling, because he is a judge, and has penetrated to the depths of civil law. By how much does the loft impair the value of the house [i.e., the lower storey]? — By a third.¹⁷  Therefore he is entitled to a third.

MISHNAH. SIMILARLY, IF AN OLIVE PRESS¹⁸  WAS BUILT IN A ROCK AND ABOVE IT WAS A GARDEN, AND THE ROOF OF THE PRESS WAS BROKEN THROUGH,¹⁹  THE OWNER OF THE GARDEN CAN DESCEND AND SOW BELOW [ON THE FLOOR OF THE PRESS], UNTIL THE PRESS-OWNER REPAIRS THE VAULTING [TO PROVIDE A SUPPORT FOR THE GARDEN ABOVE]. IF A WALL OR A TREE FELL INTO A PUBLIC THOROUGHFARE AND CAUSED DAMAGE, HE [ITS OWNER] IS FREE FROM LIABILITY. BUT IF HE WAS GIVEN A [FIXED] TIME TO CUT DOWN THE TREE OR PULL DOWN THE WALL, AND THEY FELL: IF WITHIN THE PERIOD, HE IS NOT LIABLE; AFTER THAT PERIOD HE IS LIABLE. IF A MAN'S WALL WAS NEAR HIS NEIGHBOUR'S GARDEN AND IT COLLAPSED [INTO THE GARDEN], AND WHEN HE DEMANDED, 'REMOVE YOUR STONES', HE REPLIED,

1. I.e., the wool becomes the dyer's, and he must pay the original owner for it.
2. For if the dyer should retain the wool, as R. Meir rules, he profits in that the wool-owner has brought him wool, thus saving him the labour of procuring it himself; V.B.K. 100b.
3. Who will thus be enabled to demand the full amount.
4. And it is assumed that the reason is because the creditor thereby derives benefit from the debtor's money, which is forbidden (v. B.B. 168a).
5. That the upper tenant would have to pay rent.
6. I.e., it loses its newness through his dwelling therein, hence the house-owner actually sustains a loss, and therefore the other must pay him rent.
7. v. Glos.
8. But all three do not prove that normally one may derive no benefit from his neighbour's property where the latter suffers no loss thereby.
9. [Unhewn stones are wider by one handbreadth then hewn stones, v. B.B. Mishnah 2a.]
10. Between which there was a filling of rubble. This made the wall stronger than if built with whole bricks, which allowed for no filling. v. ibid.
11. In the place of the former sycamores.
12. In the place of the former cedars.
13. [H] and [H], here translated 'he is permitted' and 'he is forbidden' respectively, are literally, 'we hearken to him,' 'we do not hearken to him.' The general principle is: if he wishes to make an alteration which strengthens the lower storey and adds to its weight, so that it can the better bear the burden of the upper portion, he is permitted. But he may not weaken it.
14. He may weaken the upper portion, thereby giving the lower a lesser burden, but not strengthen it through increasing the burden.
15. So that the owner of the lower portion wishes to turn it to agricultural purposes, whilst the owner of the upper storey demands a share in it (Tosaf.).
16. Rashal deletes the whole of the bracketed passage. on the authority of Asheri. Alfasi retains it.
17. The duration of the lower portion is lessened by one-third on account of the weight of the upper. Thus it may be held that the owner of the upper storey has a right to a third of the ground.
18. The Heb. [H], denotes the building in which the olive press, the tank, and all other objects required for pressing olives are housed.
19. Thus undermining the soil above and rendering it unfit for sowing.