Babylonian Talmud

Rodkinson 1918 — source 13, scan section 8

acted according to Abayi's decision, and Rabha b. Mar R. Ashi acted according to Resh Lakish, and so the Halakha prevails. And even in the case of orphans, although the master said else- where that he who comes to collect from the estate of orphans cannot do it without taking an oath; yet in our case the " hazakha " rule, that one does not pay when it is not due, is strong enough even concerning orphans. The schoolmen propounded a question: If the plaintiff de- manded his money after the time has long elapsed, and the defendant claim that he had paid when it was as yet not due, shall we say that the above standing rule, that one does not pay before due, denies the theory of giving consideration to a claim which appears trustworthy, for the reason that, why should he TRACT BABA BATHRA (LAST GATE). ii tell a lie which only injures him, as, e.g., the defendant could say: "I have paid in time" (and then it would be for the plaintiff to bring evidence), while claiming " I have paid before due," the burden of proof lies upon him, or perhaps such a claim is to be considered even with the standing rule ? Said R. A'ha b. Rabha to R. Ashi: Come and hear! If one claims, " I have a majia with you," and the debtor answers, " Yea"; on the morrow, when he demands his money, the debtor says, " I have already paid you," then he is free. If, however, he says, " You have nothing with me," he is responsible. Is it not to be assumed that by the expression, " I have paid you," it means in time, and the expression, " You have nothing with me," means, " I have paid you before due " ? Hence we see that such a claim is not considered ? Nay, the expression, " You have nothing with me," means, " You have never loaned it to me," as the master says elsewhere: He who claims, " I have never borrowed," is to be considered as if he should say, " I have never paid." " //", however, he has built another wall,'" etc. Said R. Huna : If he has built only a half-wall, it is the same as if he should build the whole. And R. Na'hman said: He has to join only for the half he has built, but not for what he has not. R. Huna, however, admits that if the neighbor built something opposite the party wall, the corner of his house attaching it to the party wall, then he has not to join in the expense except so far as he has built ; and also R. Na'hman admits that if he has prepared in his wall a place for roofing it (from which is to be seen that he intends to continue the wall and to roof it), he must join immediately. R. Huna said the holes in the wall prepared for placing the roofing beams, which were prepared by one of the partners, do not support the claim of the other partner, who says he has joined with him in the building of the whole wall (claiming that if he should not do so he would not expend so much money in an uncertainty, perhaps his partner would not join with him and would not allow him to open windows to the side of his yard), even when the jxEXadyooo (the holes which hold the beams) for the roofing beams have already been placed, as the builder may say, " I have prepared the whole thing, with the purpose of not damaging the wall through making holes in it, being sure that this would suit you, and you will join in the expense afterward." R. Na'hman said: If one has placed on his neighbor's wall little boards for roofing, it is not to be consid- 12 THE BABYLONIAN TALMUD. ered that the consent of his neighbor suffices for roofing it with beams. In the reverse case, however, such is to be considered sufficient. The same said again: If the dripping of water from one's roof into a neighbor's yard take place, it gives him a right to put a pipe on the roof so that the water may run to one place in the same yard ; and the same is the case in the reverse, but not if the roofing be of small branches, so that it contains numer- ous interspaces, thus spoiling the earth where there is dripping through the interspaces. R. Joseph, however, maintains that even this is allowed, and so he acted. R. Na'hman in the name of Rabba b. Abuhu said: If one let a chamber of his house to his neighbor, and this was a house with many rooms for different tenants, the tenant may use the holes which are in the wall, the beams which protrude up to four ells from his chamber; and if this was an upper chamber, he may also use the thickness of the wall on the roof, if cus- tomary to use same; but he has no right to use the front yard. R. Na'hman himself, however, maintains that he has a right to the front yard also, but not to the rear yard ; and Rabha main- tains that he has a right in the rear yard also. Rabhina said : A roof which is made for shade, if one has attached it to the wall of his neighbor, it is not to be considered as " hazakha " until the lapse of thirty days. However, if there be no protest after thirty days, it is a "hazakha" (and the owner is trusted if he claim that he has done this with his neigh- bor's consent). If this, however, was done for the purpose of a booth for the Feast of Tabernacles, after seven days it is con- sidered a "hazakha." If, however, one has attached the roof with clay, it is considered a " hazakha " immediately (as this he would not do without consent). Abayi said: If there were two houses on both sides of a j)ublic thoroughfare, each of the owners has to make a parapet to half of his roof, but not exactly opposite each other {i.e., one may make it on the north and the other on the south), and each of them has to add a little to his half (for the purpose of pre- venting looking into his neighbor's property). [Questioned the Gemara:] Why only on a public thoroughfare — should it not on a private thoroughfare be the same ? The law of a public thor- oughfare it was necessary for him to teach, lest one say: " One may claim it is anyhow needed for you to make a parapet to prevent the people passing in the street from looking into your property; therefore make the whole parapet on your property. TRACT BABA BATHRA (LAST GATE). 13 and I will bear half of the expense." So he comes to teach us that he may answer: " From the public thoroughfare one can see only in the daytime, but not at night"; or, " Only when I am standing, but not when I sit," and also, " When one likes to look. For you, however, it is to be seen in any circum- stances." The master said: " Each of them has to make a parapet to half a roof," etc. Is this not self-evident ? He means to say that if one has already done his part, lest one say his neighbor has a right to say to him, " Take from me the expense, and make all of it (as it is too much trouble for me to find a laborer for such a small work; and if you had not done