Bava Metzia 117
כְּשֶׁהוּא דָּר, לְבַדּוֹ הוּא דָּר כִּדְמֵעִיקָּרָא, אוֹ דִלְמָא שְׁנֵיהֶם דָּרִין, דַּאֲמַר לֵיהּ: אַדַּעְתָּא לְאַפֹּקִינַן לָא אֹגַרִי לָךְ.
With regard to a resident of the upper story who is entitled to move into the lower story, when he resides there, does he reside alone as he did at the outset when he occupied the upper story, and the owner of the house has no choice but to move out? Or perhaps they both reside there together, as the owner can say to him: I did not rent the upper story to you with the intention of being removed from my domicile.
אִם תִּמְצָא לוֹמַר שְׁנֵיהֶם דָּרִין בּוֹ, כְּשֶׁהוּא מִשְׁתַּמֵּשׁ – דֶּרֶךְ פְּתָחִים מִשְׁתַּמֵּשׁ, אוֹ דֶּרֶךְ גַּגִּין מִשְׁתַּמֵּשׁ? מִי אָמַר כִּדְמֵעִיקָּרָא: מָה מֵעִיקָּרָא, דֶּרֶךְ גַּגִּין – הַשְׁתָּא נָמֵי דֶּרֶךְ גַּגִּין. אוֹ דִלְמָא מָצֵי אֲמַר לֵיהּ: עֲלִיָּיה – קַבֵּילִי עֲלַאי, עֲלִיָּיה וִירִידָה – לָא קַבֵּילִי עֲלַאי.
If you say that they both reside there, when the upper-story resident uses the house, does he use it by way of its entrances, like the owner, or must he use it by way of the roofs? Must he climb the stairs and enter the upper story, and then descend to the house from there? Can the owner say: The tenant must act as he did at the outset; just as at the outset he entered by way of the roofs, now too, he must enter by way of the roofs? Or perhaps the renter can say to him: I accepted upon myself an ascent and agreed to climb the stairs to the upper story, but I did not accept upon myself an ascent and a descent, which would be necessary if I entered by way of the roofs.
אִם תִּמְצָא לוֹמַר, מָצֵי אֲמַר לֵיהּ: עֲלִיָּיה וִירִידָה לָא קַבֵּילִי עֲלַאי. שְׁתֵּי עֲלִיּוֹת זוֹ עַל גַּב זוֹ, מַהוּ? אִיפְּחִית עֶלְיוֹנָה, נָחֵית וְדָר בְּתַחְתּוֹנָה. אִיפְּחִית תַּחְתּוֹנָה, מַהוּ לְמִיסְלַק לִגְמָרֵי בְּעֶלְיוֹנָה?
If you say that the tenant can say to the owner: I did not accept upon myself an ascent and a descent, in a case where there were two upper stories, this one on top of that one, what is the halakha? The Gemara clarifies the circumstances of this case: If the floor of the higher upper story was broken, clearly he may descend and reside in the lower one, but if the floor of the lower upper story was broken, what is the halakha? Is he required to ascend the full way and reside in the higher upper story, or does he go down to reside on the ground floor?
מִי אָמְרִינַן דַּאֲמַר לֵיהּ: שֵׁם עֲלִיָּיה קַבֵּילְיתְּ עֲלָךְ? אוֹ דִלְמָא: חַד עֲלִיָּיה – קַבֵּיל עֲלֵיהּ, שְׁתֵּי עֲלִיּוֹת – לָא קַבֵּיל עֲלֵיהּ? תֵּיקוּ.
Do we say that the owner of the house can say to the tenant: You accepted upon yourself the term: An upper story, and I have provided one for you? Or perhaps one says that the tenant accepted upon himself one ascent, but he did not accept upon himself two ascents. No answer was found for these questions, and the Gemara concludes: These dilemmas shall stand unresolved.
רַבִּי יוֹסֵי אוֹמֵר: הַתַּחְתּוֹן נוֹתֵן אֶת הַתִּקְרָה כּוּ׳. מַאי ״תִּקְרָה״? רַבִּי יוֹסֵי בַּר חֲנִינָא אָמַר: קִינִּים וּסְנָאִין. וְ[יוּ]סְטִינִי אָמַר רַבִּי שִׁמְעוֹן בֶּן לָקִישׁ: לְווֹחִים. וְלָא פְּלִיגִי: מָר כִּי אַתְרֵיהּ וּמָר כִּי אַתְרֵיהּ.
§ The mishna teaches: Rabbi Yosei says: The lower resident provides the ceiling and the upper resident provides the plaster. The Gemara asks: What is the word ceiling referring to in this context? Rabbi Yosei bar Ḥanina says: Mats and beams. And the Sage Setini says that Rabbi Shimon ben Lakish says: Wide wooden planks. The Gemara comments: And these two opinions do not disagree over the basic halakha; rather, this Sage rules in accordance with the custom of his locale and this Sage in accordance with the custom of his locale, and they each were describing the necessary materials for a ceiling, according to the local building conventions.
הָנְהוּ בֵּי תְרֵי דַּהֲווֹ דָּיְירִי, חַד עִילַּאי וְחַד תַּתַּאי. אִיפְּחִית מַעֲזִיבָה. כִּי מָשֵׁי מַיָּא, עִילַּאי אָזְלִי וּמַזְּקִי לְתַתַּאי. מִי מְתַקֵּן? רַבִּי חִיָּיא בַּר אַבָּא אָמַר: הָעֶלְיוֹן מְתַקֵּן, וְרַבִּי אִלְעַי מִשּׁוּם רַבִּי חִיָּיא בְּרַבִּי יוֹסֵי אָמַר: הַתַּחְתּוֹן מְתַקֵּן. וְסִימָן: ״וְיוֹסֵף הוּרַד מִצְרָיְמָה״.
§ The Gemara relates: An incident occurred with these two people who were residing in the same house, one in the upper story, and the other one in the lower story. The plaster of the floor of the upper story broke, so that when the resident of the upper apartment would wash with water, it would run down and cause damage to the lower story. The question was: Who must repair the ceiling? Rabbi Ḥiyya bar Abba says: The upper resident repairs it, and Rabbi Elai says in the name of Rabbi Ḥiyya, son of Rabbi Yosei: The lower resident repairs it. The Gemara comments: And the following verse can serve as a mnemonic device to remember who issued which ruling: “And Joseph was brought down to Egypt” (Genesis 39:1). Rabbi Ḥiyya, son of Rabbi Yosei, indicated by Joseph, is the Sage who maintains that the owner of the lower story, indicated by: Brought down, must repair the ceiling.
לֵימָא רַבִּי חִיָּיא בַּר אַבָּא וְרַבִּי אִלְעַי בִּפְלוּגְתָּא דְּרַבִּי יוֹסֵי וְרַבָּנַן קָמִיפַּלְגִי? לְמַאן דְּאָמַר הָעֶלְיוֹן מְתַקֵּן, קָסָבַר עַל הַמַּזִּיק לְהַרְחִיק אֶת עַצְמוֹ מִן הַנִּיזָּק. וּמַאן דְּאָמַר תַּחְתּוֹן מְתַקֵּן, קָסָבַר עַל הַנִּיזָּק לְהַרְחִיק אֶת עַצְמוֹ מִן הַמַּזִּיק.
The Gemara suggests: Shall we say that Rabbi Ḥiyya bar Abba and Rabbi Elai disagree with regard to the matter subject to dispute between Rabbi Yosei and the Rabbis in the mishna? The explanation of the dispute would then be as follows: According to the one who says that the upper resident repairs it, he holds that the responsibility is on the one potentially responsible for the damage to distance himself from the one whose property is potentially damaged. This accounts for the opinion of Rabbi Yosei in the mishna, who holds that the resident of the upper story must provide the plaster, because his water is clearly causing damage below. And the one who says that the lower resident repairs it, he holds like the Rabbis, who say that the responsibility is on the one whose property is potentially damaged to distance himself from the one potentially responsible for the damage.
וְתִיסְבְּרָא רַבִּי יוֹסֵי וְרַבָּנַן לְעִנְיַן נְזָקִין פְּלִיגִי? וְהָא אִיפְּכָא שָׁמְעִינַן לְהוּ, דִּתְנַן: מַרְחִיקִין אֶת הָאִילָן מִן הַבּוֹר עֶשְׂרִים וְחָמֵשׁ אַמָּה, וּבֶחָרוּב וּבַשִּׁקְמָה חֲמִשִּׁים אַמָּה, בֵּין מִלְּמַעְלָה בֵּין מִן הַצַּד. אִם הַבּוֹר קָדַם – קוֹצֵץ וְנוֹתֵן דָּמִים. אִם הָאִילָן קָדַם – לֹא יָקוֹץ. סָפֵק זֶה קָדַם סָפֵק זֶה קָדַם – לֹא יָקוֹץ.
The Gemara asks: And how can you understand it that way? Do Rabbi Yosei and the Rabbis disagree in the mishna with regard to distancing oneself from damages? But haven’t we heard them say the opposite? As we learned in a mishna (Bava Batra 25b): One must distance a tree twenty-five cubits from a pit, because its roots damage the pit, and in the case of a carob or sycamore tree, whose roots spread far, one must distance it by fifty cubits. This is the halakha whether the pit or tree is located above or to the side of the other. If the pit preceded the tree, the owner of the pit may cut down the tree and pay its monetary value. If the tree preceded the pit, then he may not cut it down. If it is uncertain whether this tree preceded that pit, and it is uncertain whether that pit preceded this tree, he may not cut down the tree.
רַבִּי יוֹסֵי אוֹמֵר: אַף עַל פִּי שֶׁהַבּוֹר קוֹדֶמֶת לָאִילָן – לֹא יָקוֹץ, שֶׁזֶּה חוֹפֵר בְּתוֹךְ שֶׁלּוֹ, וְזֶה נוֹטֵעַ בְּתוֹךְ שֶׁלּוֹ. אַלְמָא, רַבִּי יוֹסֵי סָבַר עַל הַנִּיזָּק לְהַרְחִיק אֶת עַצְמוֹ, וְרַבָּנַן סָבְרִי עַל הַמַּזִּיק לְהַרְחִיק אֶת עַצְמוֹ!
Rabbi Yosei says: Even if the pit preceded the tree, he may not cut it down. Why is that? As this one digs in his own property, and that one plants in his own property. Consequently, the owner of the pit cannot complain about the damage, and if he wants to avoid it, he can dig his pit elsewhere. Apparently, this mishna indicates that Rabbi Yosei holds that the responsibility is on the one whose property is potentially damaged to distance himself from the one potentially responsible for the damage, and the Rabbis hold that the responsibility is on the one potentially responsible for the damage to distance himself from the one whose property is potentially damaged.
אֶלָּא אִי אִיכָּא לְמֵימַר פְּלִיגִי, בִּפְלוּגְתָּא דְּרַבִּי יוֹסֵי וְרַבָּנַן דְּהָתָם קָמִיפַּלְגִי.
Rather, if it can be said that these amora’im disagree with regard to the issue that is the subject of the dispute between these tanna’im, then they disagree in the dispute between Rabbi Yosei and the Rabbis there, concerning the question of who is obligated to distance himself from the damage, but it has nothing to do with the dispute in the mishna here.
וְרַבִּי יוֹסֵי וְרַבָּנַן דְּהָכָא, בְּמַאי פְּלִיגִי? בְּחוֹזֶק תִּקְרָה קָמִיפַּלְגִי. רַבָּנַן סָבְרִי: מַעֲזִיבָה אַחְזוֹקֵי תִּקְרָה הוּא, וְאַחְזוֹקֵי תִּקְרָה (עַל הַ)תַּחְתּוֹן בָּעֵי (לְ)אַחְזוֹקֵי. וְרַבִּי יוֹסֵי סָבַר: מַעֲזִיבָה אַשְׁווֹיֵי גּוּמּוֹת הוּא, וְאַשְׁווֹיֵי גּוּמּוֹת (עַל הָעֶלְיוֹן לְאַשְׁווֹיֵי).
The Gemara asks: And with regard to what principle do Rabbi Yosei and the Rabbis of the mishna here disagree? The Gemara answers: They disagree with regard to the strength of a ceiling. The Rabbis hold that the function of the plaster is to strengthen the ceiling, and strengthening the ceiling is the obligation of the lower resident, as he is required to strengthen it. And Rabbi Yosei holds that the function of the plaster is to level out any holes, so that the surface of the ceiling will be flat, and leveling out holes it is the obligation of the upper resident, as he is required to level them out.
אִינִי? וְהָאָמַר רַב אָשֵׁי: כִּי הֲוֵינָא בֵּי רַב כָּהֲנָא, הֲוָה אָמְרִינַן: מוֹדֶה רַבִּי יוֹסֵי בְּגִירֵי דִּילֵיהּ!
The Gemara challenges the above conclusion: Is that so? But didn’t Rav Ashi say: When I was in the school of Rav Kahana we would say that Rabbi Yosei concedes in a case of his arrows. Although Rabbi Yosei holds that the responsibility is on the one whose property is potentially damaged to distance himself from the one potentially responsible for the damage, that is only if the one causing the damage is not performing a direct action that is causing the damage, as in the case of the tree and the pit. But if he is performing an action that causes damage from a distance, as in this case, where the water he pours damages the resident of the lower story, he is like someone shooting arrows, who is certainly obligated to ensure that he does not cause any damage.
דְּפָסְקִי מַיָּא וַהֲדַר נָפְלִי.
The Gemara answers: This is a case in which the water flow stops in one place, as the hole in the floor is not directly in the place where the water was poured, and subsequently it falls into the lower story once it flows to the opening in the floor. Consequently, even in this case, the upper resident does not directly cause the damage.
מַתְנִי׳ הַבַּיִת וְהָעֲלִיָּיה שֶׁל שְׁנַיִם שֶׁנָּפְלוּ, אָמַר בַּעַל הָעֲלִיָּיה לְבַעַל הַבַּיִת לִבְנוֹת וְהוּא אֵינוֹ רוֹצֶה לִבְנוֹת – הֲרֵי בַּעַל הָעֲלִיָּיה בּוֹנֶה אֶת הַבַּיִת וְדָר בְּתוֹכָהּ, עַד שֶׁיִּתֵּן לוֹ אֶת יְצִיאוֹתָיו.
MISHNA: In the case of the house and the upper story belonging to two different people, and that house and upper story collapsed, and the owner of the upper story told the owner of the house to build the lower story in order to enable him to rebuild the upper story, and he does not want to build it, the owner of the upper story may build the house and reside in it, until the other gives him his expenses for the construction of the house, and he then rebuilds his upper story.
רַבִּי יְהוּדָה אוֹמֵר: אַף זֶה דָּר בְּתוֹךְ שֶׁל חֲבֵירוֹ, צָרִיךְ לְהַעֲלוֹת לוֹ שָׂכָר. אֶלָּא בַּעַל הָעֲלִיָּיה בּוֹנֶה אֶת הַבַּיִת וְאֶת הָעֲלִיָּיה, [וּ]מְקָרֶה אֶת הָעֶלְיוֹנָה, וְיוֹשֵׁב בַּבַּיִת עַד שֶׁיִּתֵּן לוֹ אֶת יְצִיאוֹתָיו.
Rabbi Yehuda says: This one too, i.e., the owner of the upper story, who is meanwhile residing inside the property of the other, must pay him rent. Since he derived benefit by living in the house of the other, as he had no other place in which he could live, he must pay rent. This solution is therefore flawed. Rather, the owner of the upper story builds the house and the upper story, and he roofs the upper story, i.e., he completes the entire construction of the upper story, and he may then sit in the house, i.e., the lower story, until the other gives him his expenses for the building of the house, at which point he returns to his upper story. Since in any event he could have lived in the upper story, he is not considered to have derived any benefit by living in the lower story, and is not obligated to pay rent.
גְּמָ׳ אָמַר רַבִּי יוֹחָנָן: בִּשְׁלֹשָׁה מְקוֹמוֹת שָׁנָה לָנוּ רַבִּי יְהוּדָה אָסוּר לְאָדָם שֶׁיֵּהָנֶה מִמָּמוֹן חֲבֵירוֹ. חֲדָא – הָא דִּתְנַן.
GEMARA: Rabbi Yoḥanan says: In three places Rabbi Yehuda taught us the principle that it is forbidden for a person to derive benefit from the property of another without his full awareness and consent, even if the other does not suffer a loss. One of the places where we are taught this principle is that which we learn in the mishna, that Rabbi Yehuda does not allow one to reside in another’s property without paying him rent.
אִידַּךְ מָה הִיא, דִּתְנַן: הַנּוֹתֵן צֶמֶר לַצַבָּע לִצְבּוֹעַ לוֹ אָדוֹם וּצְבָעוֹ שָׁחוֹר, שָׁחוֹר וּצְבָעוֹ אָדוֹם, רַבִּי מֵאִיר אוֹמֵר: נוֹתֵן לוֹ דְּמֵי צַמְרוֹ. רַבִּי יְהוּדָה אוֹמֵר: אִם הַשֶּׁבַח יוֹתֵר עַל הַהוֹצָאָה – נוֹתֵן לוֹ הַיְּצִיאָה, וְאִם הַהוֹצָאָה יְתֵירָה עַל הַשֶּׁבַח – נוֹתֵן לוֹ אֶת הַשֶּׁבַח.
What is another place where we are taught this principle from Rabbi Yehuda’s statements? As we learned in a mishna (Bava Kamma 100b): If one gives wool to a dyer to dye it red for him and instead he dyed it black, or to dye it black and he dyed it red, Rabbi Meir says: The dyer gives the owner of the wool the value of his wool. Rabbi Yehuda says: If the value of the enhancement exceeds the dyer’s expenses, the owner of the wool gives the dyer the expenses. And if the expenses exceed the enhancement, he gives him the value of the enhancement. But the dyer may not keep the dyed wool for himself, as it is forbidden for one to benefit from another’s property.
וְאִידַּךְ מַאי הִיא, דִּתְנַן: מִי שֶׁפָּרַע מִקְצָת חוֹבוֹ וְהִשְׁלִישׁ אֶת שְׁטָרוֹ וְאָמַר לוֹ: ״אִם אֵין אֲנִי נוֹתֵן לְךָ מִכָּאן וְעַד זְמַן פְּלוֹנִי – תֵּן לוֹ שְׁטָרוֹ״. הִגִּיעַ זְמַן וְלֹא נָתַן, רַבִּי יוֹסֵי אוֹמֵר: יִתֵּן, רַבִּי יְהוּדָה אוֹמֵר: לֹא יִתֵּן.
And what is the other, third place where we are taught this principle from Rabbi Yehuda’s statements? As we learned in a mishna (Bava Batra 168a): In a case of a debtor who repaid part of his debt, and he deposited the promissory note with a third party serving as a trustee, to ensure that the creditor not collect the full amount, and the debtor said to the trustee: If I do not give you the balance from now until such and such a time, give the creditor his promissory note, thereby enabling him to collect the full amount stated in the note; if the stipulated time arrived and the debtor has not given the balance to the trustee, Rabbi Yosei says: The trustee shall give the promissory note to the creditor, in accordance with the debtor’s stipulation. Rabbi Yehuda says: The trustee shall not give it, as the stipulation is void. Here too, the reason is that the creditor is forbidden to benefit from the property of another.
אַמַּאי? דִּלְמָא עַד כָּאן לָא קָאָמַר רַבִּי יְהוּדָה הָכָא, אֶלָּא מִשּׁוּם דְּאִיכָּא שַׁחְרוּרִיתָא.
The Gemara refutes these proofs as to the general applicability of Rabbi Yehuda’s rulings. Why is it necessary to explain in this manner? Perhaps Rabbi Yehuda is saying this only here, with regard to the case of the mishna concerning a house and an upper story, only because there is the blackening of the walls. By using the house, the owner of the upper story causes its walls to blacken, thereby lowering its value, and yet he will ultimately claim the value of a new house that he built. Therefore, he is prohibited from using the house without paying.
אִי נָמֵי לִצְבּוֹעַ לוֹ אָדוֹם וּצְבָעוֹ שָׁחוֹר – מִשּׁוּם דְּקָא מְשַׁנֶּה, וְהָתְנַן: כׇּל הַמְשַׁנֶּה יָדוֹ עַל הַתַּחְתּוֹנָה.
Alternatively, if one attempts to prove a general principle from the case where one instructed a dyer to dye the wool for him red and he dyed it black, it can be explained that the reason for the ruling of Rabbi Yehuda is due to the fact that the dyer is changing and deviating from the owner’s instructions, and didn’t we learn in a mishna (76a) that whoever changes the terms accepted by both parties is at a disadvantage?
וּמִי שֶׁפָּרַע מִקְצָת חוֹבוֹ נָמֵי הָוֵי אַסְמַכְתָּא, וְשָׁמְעִינַן לֵיהּ לְרַבִּי יְהוּדָה דְּאָמַר לָא קָנֵי.
And as for the case of one who repaid part of his debt, there too, the reason the trustee may not transfer the promissory note is not as explained above. Rather, it is due to the fact that the transfer of the promissory note and subsequent collection of the entire sum if he does not repay on time is considered a transaction with inconclusive intent [asmakhta], a condition that an individual accepts upon himself as an exaggerated measure that he does not expect to have to fulfill, and we heard Rabbi Yehuda who says that an asmakhta does not effect acquisition. There is therefore no proof that Rabbi Yehuda holds that it is forbidden for one to benefit from the money of another.
אָמַר רַב אַחָא בַּר אַדָּא מִשְּׁמֵיהּ דְּעוּלָּא: תַּחְתּוֹן הַבָּא לְשַׁנּוֹת, בִּגְוִיל – שׁוֹמְעִין לוֹ, בְּגָזִית – אֵין שׁוֹמְעִין לוֹ.
§ Rav Aḥa bar Adda says in the name of Ulla: In the case of a resident of the lower story who wishes to rebuild the collapsed house, who comes to change the structure and now seeks to rebuild it with untrimmed stones that are larger than the original ones, the court listens to him and accepts his wishes, since an adjustment of this kind only serves to benefit the owner of the upper story. But if the house was previously built with large untrimmed stones and he now wants to rebuild it with hewn stones, which are smaller, the court does not listen to him, as this reduces the strength of the building.
בִּכְפִיסִין – שׁוֹמְעִין לוֹ. בִּלְבֵנִים – אֵין שׁוֹמְעִין לוֹ. לְסַכֵּךְ בַּאֲרָזִים – שׁוֹמְעִין לוֹ. בְּשִׁקְמִים – אֵין שׁוֹמְעִין לוֹ.
Similarly, if the house was formerly built with bricks, and he wants to rebuild it with girders, the court listens to him, as this type of wall is very stable. But if the house was previously built with girders, and he now wants to rebuild it with bricks, the court does not listen to him. If he wants to roof it with strong cedar wood, the court listens to him, but if he wants to roof it with sycamore wood, instead of cedar, the court does not listen to him.
לְמַעֵט בְּחַלּוֹנוֹת – שׁוֹמְעִין לוֹ. לְהַרְבּוֹת בְּחַלּוֹנוֹת – אֵין שׁוֹמְעִין לוֹ. לְהַגְבִּיהַּ – אֵין שׁוֹמְעִין לוֹ. לְמַעֵט – שׁוֹמְעִין לוֹ.
If he wants to reduce the number of windows, the court listens to him, as this will strengthen the walls, but if he wants to increase the number of windows, the court does not listen to him. If he wants to heighten the building, the court does not listen to him, as it might be less stable than before, but if he wants to reduce its height, the court listens to him.
עֶלְיוֹן שֶׁבָּא לְשַׁנּוֹת, בְּגָזִית – שׁוֹמְעִין לוֹ, בִּגְוִיל – אֵין שׁוֹמְעִין לוֹ.
The halakha is the same in the reverse: In the case of a resident of the upper story who comes to change the structure, and wishes to rebuild the upper story with hewn stones instead of large untrimmed stones, the court listens to him, as this reduces the weight on the lower floor. But if he wants to change from smaller hewn stones and rebuild with larger untrimmed stones, the court does not listen to him, as this would make the upper story heavier.
בִּכְפִיסִין אֵין שׁוֹמְעִין לוֹ, בִּלְבֵנִים שׁוֹמְעִין לוֹ. בַּאֲרָזִים אֵין שׁוֹמְעִין לוֹ, בְּשִׁקְמָה שׁוֹמְעִין לוֹ. לְרַבּוֹת בְּחַלּוֹנוֹת שׁוֹמְעִין לוֹ, לְמַעֵט בְּחַלּוֹנוֹת אֵין שׁוֹמְעִין לוֹ. לְהַגְבִּיהַּ אֵין שׁוֹמְעִין לוֹ, לְמַעֵט שׁוֹמְעִין לוֹ.
Likewise, if he wants to rebuild it with girders instead of bricks, the court does not listen to him, but if it was previously built with girders, and he now wants to rebuild it with bricks, the court listens to him. If he wants to roof it with heavy cedar wood, the court does not listen to him, but if he wants to roof it with sycamore wood instead of cedar, the court listens to him. If he wants to increase the number of windows, which would lessen the weight of the construction, the court listens to him, but if he wants to reduce the number of windows, the court does not listen to him. If he wants to heighten the building, the court does not listen to him, as this increases the weight of the building, but if he wants to reduce its height, the court listens to him.
אֵין לוֹ לָזֶה וְלֹא לָזֶה, מַאי? תַּנְיָא: אֵין לוֹ לֹא לָזֶה וְלֹא לָזֶה – אֵין לוֹ לְבַעַל עֲלִיָּיה בַּקַּרְקַע כְּלוּם.
§ The Gemara poses a question: If they are so poor that neither this one nor that one has enough money to rebuild it, and they are prepared to sell the land, what is the halakha? The Gemara answers: It is taught in a baraita: If neither this one nor that one has the money to rebuild the house, the owner of the upper story does not have any rights to the land, and all rights of the land belong to the owner of the lower story.
תַּנְיָא, רַבִּי נָתָן אוֹמֵר: תַּחְתּוֹן נוֹטֵל שְׁנֵי חֲלָקִים וְהָעֶלְיוֹן שְׁלִישׁ. וַאֲחֵרִים אוֹמְרִים: תַּחְתּוֹן נוֹטֵל שְׁלֹשָׁה חֲלָקִים וְהָעֶלְיוֹן נוֹטֵל רְבִיעַ. אָמַר רַבָּה: נְקוֹט דְּרַבִּי נָתָן בִּידָךְ, דְּדַיָּינָא הוּא וְנָחֵית לְעוּמְקָא דְּדִינָא, קָא סָבַר: כַּמָּה מַפְסֵיד עֲלִיָּיה בַּבַּיִת – תִּילְתָּא, הִלְכָּךְ אִית לֵיהּ תִּילְתָּא.
It is taught in a different baraita: Rabbi Natan says: The resident of the lower story takes two shares of the land, and the resident of the upper story takes one-third. And others say: The resident of the lower story takes three shares, and the resident of the upper story takes one-quarter. Rabba says: Take the statement of Rabbi Natan in your hand, because he is a judge, and he descends to the depths of the law. He maintains: How much does the presence of the upper story depreciate the value of the house? One-third. Therefore he has one-third, i.e., he is entitled to one-third of the total sum that they receive for the land.
מַתְנִי׳ וְכֵן בֵּית הַבַּד שֶׁהוּא בָּנוּי בַּסֶּלַע וְגִינָּה אַחַת עַל גַּבָּיו, וְנִפְחַת – הֲרֵי בַּעַל הַגִּינָּה יוֹרֵד וְזוֹרֵעַ לְמַטָּה עַד שֶׁיַּעֲשֶׂה לְבֵית בַּדּוֹ כִּיפִּין.
MISHNA: And likewise, in the case of an olive press that is built inside a cave in a rock, and one garden, belonging to another person, was planted on top of it, and the roof of the olive press broke, which caused the garden to collapse inward, in such a case, the owner of the garden may descend and sow below until the other one constructs for his olive press sturdy arches to support the roof, so that the owner of the garden can once again sow above him.
הַכּוֹתֶל וְהָאִילָן שֶׁנָּפְלוּ לִרְשׁוּת הָרַבִּים וְהִזִּיקוּ – פָּטוּר מִלְּשַׁלֵּם. נָתְנוּ לוֹ זְמַן לָקוֹץ אֶת הָאִילָן וְלִסְתּוֹר אֶת הַכּוֹתֶל, וְנָפְלוּ בְּתוֹךְ הַזְּמַן – פָּטוּר, לְאַחַר הַזְּמַן – חַיָּיב.
The mishna continues: In the case of a wall or a tree that fell into the public domain and caused damage, the owner is exempt from having to pay, as it was an accident. If the court saw that the wall was shaky, or that the tree was tilting, and they gave him time to cut down the tree or to dismantle the wall, and then they fell down, if this occurred during the allotted time, he is exempt, but if they collapsed after the time given to him had elapsed, he is liable to pay, since he was warned against this very occurrence.
מִי שֶׁהָיָה כּוֹתְלוֹ סָמוּךְ לְגִינַּת חֲבֵירוֹ וְנָפַל, וְאָמַר לוֹ: פַּנֵּה אֲבָנֶיךָ, וְאָמַר לוֹ:
In the case of one whose wall was adjacent to another’s garden, and the wall fell, and the owner of the garden said to him: Clear away your stones, and the owner of the stones said to him:
