Babylonian Talmud

Rodkinson 1918 — source 13, scan section 58

than four ells. Shall we assume that the point of their difference is, if the court has to coerce one who acts after the manner of the Sodomites {e.g., if one derives benefit from a thing which does not harm any one, the preventer is equalled to the Sodomites, and the question is. Must the court overrule such a preventer or must it be left to the conscience of this man, and the court has nothing to do with it ?). Nay ; all agree that in such a case the court shall overrule the preventer. Here, however, it is different, as the neighbor might say : It might happen that you would take a footstool, stand upon it to look in at my window, and then will be visible to you what is going on in my house. There was one who wanted to open a window higher than four ells to his neighbor's yard, and the case came before R. Ami ; and he referred it to R. Abba b. Mamal, who decided in accord- ance with R. Ailah. Said Samuel : To a window which is to be opened for light, whatever size it may be, the law of hazakah applies. MISHNA VII. : To an enclosure the size of a span in width hazakah applies ; and if one came to make it in his building which faces his neighbor's yard, the latter has a right to protest. To less than the above size hazakah does not apply, and also no protest can be made against it. GEMARA : R. Assi, or R. Jacob in the name of R. Manni, said : If he has made a hazakah with the enclosure which was the width of one span, he has made it for four spans. How is this to be understood? Said Abayi : He means to say that if the enclosure one span wide has the length of four spans, he may 142 THE BABYLONIAN TALMUD. increase it to four spans square (as his neighbor does not dis- turb him from taking the space of four spans in the length, it would be the same as if it were square). "■ Less than that size no hazakah,'' etc. Said R. Huna: This is said concerning the owner of the roof only, but the owner of the yard may prevent his neighbor from making an enclosure even less than a span. R. Jehudah, however, maintains that neither of them can prevent the other. Shall we assume that the point of their difference is, if harm done by looking is con- sidered damage, or not ? Nay ; all agree that it is considered. But in this case such an enclosure not being fit for use, except to hang something in it, is different, as one may say : I can do it without looking into your property. The one, however, who forbids this, maintains that his neighbor may claim : It can hap- pen that while hanging his things in this enclosure he will be frightened, and even unwillingly his face will be turned to my property, and will see what I should not like. MISHNA VIII. : One must not open windows to the yard even when he is a partner in it (without the consent of the other partner). If he bought a house in another yard, he must not open a door to that yard in which he is a partner. If he built an attic upon his house, he must not make its entrance in the yard in question. He may, however, divide a chamber inside of his house, and build an upper chamber upon it, so that the entrance should be through his house. GEMARA: Why does the Mishna treat about a yard of partners? Is it not the same with the yard of one's neighbor, without any partnership? It means to say not only to one's neighbor's yard is he not allowed, but even to that in which he is a partner. Lest one say : As his partner has to hide from him (such things as he would not like his partner to see) in the yard anyhow, it does not matter if he should open a window to that part which belongs to him; it comes to teach us that his partner may say : Until now I had to hide myself from you in the yard only ; but by opening a window from which my house will be visible, I shall have to hide myself in my house also. The rabbis taught : It happened with one who opened his windows to a partner's yard, and he came before R. Ishmael b. R. Jose, who said to him : My son, thy hazakah is valid, as thy partner has not protested. When this case came up again before R. Hyya, he said : You have troubled yourself to open it, trouble yourself to close it. Said R. Na'hman : If one of the partners TRACT BABA BATHRA (LAST GATE). 143 built a wall against the window which was opened to the yard in question and was not disturbed by the owner of it, it is considered a hazakah immediately ; as one would not tolerate that his light should be shut off in his face and be silent. "7/" he bought a house . . . he must not open a door to that yard,'' etc. Why so? Because he increases walkers through the yard (and this would be disagreeable for the inhabitants of it, as their work in the yard would be visible to people, which they would not like). But if so, why then, does the latter part allow to build an upper chamber inside of one's house ? Does he also not increase walkers with this? Said R. Huna : It means that he may divide his chamber horizontally, so that it should serve for an attic ; but not to enlarge the building. MISHNA IX. : One must not open in a yard belonging to partners a door or window opposite his partner's door or window : If there is a small one, he must not enlarge it ; and if there is one door, he must not make two of it. All this, however, may be done to the public street, GEMARA : Whence do we deduce all this ? Said R. Johanan : From [Num. xxiv. 2] : " When he saw Israel encamped according to their tribes." What did he see ? That their doors were not exactly opposite each other. And then he said : They are worthy that the Shekhinah should rest upon them. " He must not enlarge it!' Rammi b. Hamma was about to say, e.g., that if it was the size of four ells, he must not make it eight ; because he takes four ells space from the yard. But if it was two ells, he might enlarge it to four. Said Rabha to him : His partner may claim : When you had a small door, I could hide myself from you, which is not the case with a large one. '^ If there was one!' etc. Rami b. Hamma was about to say, when the door was four ells wide, he must not divide it into two each ; but if it was eight ells wide, he might divide it in two — each of four. Said Rabha to him : His partner may claim when he had one door: I could hide myself from you, which is not the case when you will have two. " To the public street." Because one may say : It does not matter that my door is open just opposite yours, as you must anyhow hide from the passers-by. MISHNA X. : One must not make a hole in public ground ; viz., pits, excavations, or caves. R. Eliezer, however, permits this, if the surface of the ground remains strong enough to bear wagons loaded with stones.