Good Fences...

Bava Batra (1:1) | Yisrael Bankier | 16 days ago

Masechet Bava Batra opens by discussing a case where people want to divide a shared courtyard. The Mishnah teaches that they must build a fence to divide between the two properties according to the local standard.

The Bartenura explains that the case in the Mishnah is where the courtyard is smaller than the minimum size for which each party can force the other to divide it. This explains why the Mishnah begins that the parties "wanted" to divide the courtyard. However once the agreed to do so, they must build a fence, with each party equally contributed land on which to build it. Despite the fact the Mishnah explains that its thickness must be according to the local standard, the Bartenura adds that it must be a least four amot high and thick enough that one cannot see through the fence. This is because of hezek re'iya. How does we understand hezek re'iya.

The Even HaAzel (Shchenim 2:16) presents two ways to understand the issue. At first it would appear to be that the obligation to build the fence is much like other laws (of which we will learn) where one has to prevent damage being caused to his neighbours property. It would seem then the peering into another property causes direct damage and the wall prevents that. Without a fence, it is impossible for one not to gaze at his friend property and cause that damage.

The Even HaAzel present another way of understanding the issue. It not that that gazing does any damage per se. Rather that with the lack of privacy, the neighbour will be inhibited from using it for private matters. Even though the "damage" is indirect, we learn that one is still accountable -- gerama be'nezikin chayav. He notes that even if one party simply stood on his side without looking into the other side, his presence would cause that damage. Importantly, he adds that according to this understanding, hezek re'iya would only apply if the damaged party had a chazaka -- full rights to use that land. Otherwise, the other party could equally counter that his own movement should not be restricted.

The Even HaAzel cite the following debate as stemming from these two different understanding. If brothers divide an estate, then "ein lahem chalonot ze al ze". In other words, one heir cannot prevent the other from building a wall in front of the neighbouring heir's window. The Raavad maintains, that while this might be true, the other heir equally cannot demand that his brother close up his windows that overlook his property. The Rosh however argues that this would a classic case of hezek re'iya so that demand can be made; a position shared by the Rambam.

The Even HaAzel explains that the Rosh maintains the first understanding that hezek re'iya is direct damage. Since the owner with the windows does not have a chazaka (the property was only now divided) he must prevent that damage from occurring and block up the window. The Raavad however maintains the second understanding that the damage is simply the restricted use of his property. In this case however, just as the heir with the window does not have a chazaka, the other heir does not have a chazaka on unrestricted use. Consequently, hezek re'iya would not apply in this case.

Based on this analysis, it is difficult to understand how the Raavad would understand our Mishnah. Neither party has a chazaka of unrestricted usage so how is hezek re'iya motivating the obligation to build a wall. The Even HaAzel explains that the obligation is not from direct damage, but rather stems out of the law of shutfim -- joint ownership. Just as they can compel on other, when they shared the courtyard, to build a door, a guardhouse, etc, this obligation when dividing the chatzer is part of those laws. To be clear, it is certainly dependant one whether hezek re'iya has a basis in halacha (which is debated in the Gemara). If it did not, then this law would have not found its way into the laws of shutfim. Once it is however, they must be build the wall when they divide the courtyard.

Download