Babylonian Talmud

Rodkinson 1918 — source 13, scan section 9

yours, I would have taken laborers to do the whole of it on my property and taken from you your share of the expense)," it comes to teach us that his neighbor may say, " As you do not wish to spoil your roof by the weight of the entire parapet, so I do not wish to spoil mine." R. Na'hman in the name of Samuel said: On a roof which looks into the yard of one's neighbor, he has to make a parapet to the height of four ells. However, between the roofs he need not. And R. Na'hman himself maintains that four ells is not necessary, but a partition of ten spans is. To what purpose ? If to prevent looking, then four ells are necessary; and if only for separation of the roofs, in case one step beyond his roof, he should be accused of intention to steal, then any partitions suffice, and if to pre- vent goats or sheep from straying, a small partition which they cannot jump over sufBces ? It is for the second purpose men- tioned above; but if there should be any separation, he may say, " I stretched my hand over to the neighbor's roof because I wanted to measure the boundary lines on the roof," which is not likely for him to say when the partition is of ten spans. An objection was raised from the following: " If his courtyard was higher than the roof of his neighbor, it is not to be taken into consideration." May we not assume that it means that no parapet whatever is needed ? Nay. It means the consideration of a parapet of four ells, but one of ten spans is required. It was taught : If there were two courtyards, one upon the other, according to R. Huna the lower one has to build from his upper side upwards until he reaches the upper one, and the higher one continues; and according to Ula and R. Hisda the higher one has to share in the expense of the lower one also ; and there is a Boraitha which supports R. Hisda as follows : If there were two courtyards, one upon the other, the upper one 14 THE BABYLONIAN TALMUD. cannot say, " I will begin to build from my property," but he must share with the lower one; and if, however, his courtyard were higher than the roof of his neighbor, he has nothing to do with him. There were two tenants, one in the upper and one in the lower part of a house, and the roof of the lower one sank, and he called on the upper one to rebuild it. He declined, saying, " My residence is not spoiled." Then the lower one asked of him permission to rebuild the whole thing at his own expense, but the upper one responded, '* I have no place in which to live until you shall have rebuilt." Then he wanted to hire a resi- dence for him, but he was told, " I do not want to trouble myself by removing." And to the claim of the lower one that he could not live in the house, he answered, " Thou canst bow thy head when going out and coming in." Said R. Hama: The upper one's claim could be taken into consideration, pro- vided the roof had not reached down to the height of ten spans from the floor of the house; but if it so reached down, the lower one may claim, " This place belongs to my property, and it must be removed." And all this is said when there was no stipu- lation at the time of building; but if there were, the upper one may be compelled to share in the rebuilding. But to what extent must it have sunk that the lower one should have the right to rebuild ? Said the rabbis, in' the presence of Rabha, in the name of Mar Sutra b. R. Na'hman: He has quoted his father answering this question, that if the height was less than is stated (Chapter VL, Mishna 4), the height should be the half of the length and the breadth together. And Rabha answered : Did not I tell you, you should never hang a ftixo^ (clay pot) on R. Na'hman's neck ? (It means that nonsense should not be quoted in his name.) For I know R. Na'hman's decision was: " If it was spoiled from the ordinary use of a dwelling." However, after all, to prevent controversy the law should state Bome dimension. Said R. Huna b. R. Jehoshua: If the height decreases so that the bundles of sticks usually made in the city of Mehusa cannot be brought in and be manipulated. There was one who built a wall against the window of his neighbor, and to the claim of his neighbor, " You darken my place," he answered him, " I will close up at my expense this window and make you a new one above." But the other party refused, saying, " By doing so you will spoil my wall." He said then: " I will take apart your wall unto this place and TRACT BABA BATHRA (LAST GATE). 15 build you a new one." The other rejoined: "The old wall will not bear the new building." He then offered to rebuild the whole wall from top to bottom and to make him a new win- dow, and again he refused, saying that one new wall would not correspond with the three old ones. Finally the other party agreed to rebuild the whole house, and still he refused : " I have no place to live." And even then his neighbor agreed to hire for him a residence, and he again responded, " I do not want the trouble of removing." And R. Hama decided that the law cannot compel him to comply with the wish of his neighbor. But to what purpose is this stated ? Has not R. Hama declared his decision in the above case ? He meant to say that even if he has used the house in question for keeping straw and wood only, even then he cannot be compelled. There were two brothers who divided a bequest. One took a palace and the other took a nice garden which was in front of it; and the latter built a wall on the edge of the garden, and to the claim of his brother that he darkened his house, he an- swered, " I built it on my property." And Rabh decided that the law is not against him. Said Rabhina to R. Ashi: Why should this case differ from the case in the following Boraitha: Two brothers divided a bequest. One took a vineyard and the other took a field. The owner of the vineyard is entitled to four ells of the field for the entering of animals to work it up, etc., as it is considered that so was the stipulation at the time of the division. (Hence we see that the requirements of the vineyard are taken into consideration. Why should it not be the same with the palace of the above case ?) And R. Ashi answered: There the owner of the vineyard paid to his partner the difference between the two estates, and consequently the stipulation that his vineyard should be worked up was made. To this Rabhina rejoined: Do you mean to say that in the case of the palace there was not any settlement about the value of the two parts of the bequest ? Does the law speak of fools ? And R. Ashi rejoined: It may be there was a settlement, and the man of the garden took his share for the value of the build- ing of the palace, but they had not made any settlement for the