Good fences mean…

Bava Batra (1:1) | Yisrael Bankier | 12 years ago

In the time of the Mishnah it was common for houses to open onto a shared courtyard (chatzer) as apposed to the public domain. The firstMishnah addresses the case where the occupants wish to subdivide the courtyard and construct an appropriate partition. 

The Mishnah describes the case as where the parties agree to subdivide the chatzer. The Gemara notes that this would only be the case regarding a small chatzer. If however the chatzer was large enough to have a “din chaluka”, then one party could force the other to comply. This would be a chatzer that has at least four square amot for each party (aside from the four amot allocated for each doorway).

The Gemara (3a) deals with the case of our Mishnah. If the chatzer is so small that it does not have a din chaluka then each party should be able to change their mind, the verbal agreement does not hold much weight. Rav Ashi explains that this is where “one went to his section and was machzik, and the other to his and was machzik”. Rashi explains that the occupant dug part of his section thereby constituting a kinyan chazaka – an acquisition through the demonstration of control/ownership of the land.

The Bartenura explains that each party must be machzik his section as verbally agreed for the division to be finalised. The would follow the straightforward understanding of Rav Ashi’s statement as cited above. The Tosfot Yom Tov however explains that the Bartenura should not be taken literally. Citing a Tosefta, he explains that when swapping properties, only one party needs to machzik the property for the kinyan chalipin (acquisition via exchange) to complete. Consequently in this case it should be enough for one of the residents to be machzik. 

The Tosfot Yom Tov continues by citing the Haghot Maimoni who finds it difficult to fit this suggestion with the simple wording of the Gemara. The Haghot Maimoni therefore suggests that the chazaka required in this case of a division of a partnership is not of the same level as required normally for a kinyan chazaka. Whereas normally locking the field, building or destroying a fence is required, here it is enough for them simply walk the length and breadth of their section. Since this is a “weaker” a chazaka, both parties must perform it.¹

The Chidushei Mahariach however defends the Bartenura explaining that this case is different to a kinyan chalipin. In that case, from the outset the ownership of each of the properties is recognized as being distinct. After one of the parties performs a chazika it is immediately clear that ownership has changed hands. In this case however, both parties shared the chatzer. The only change is that they are now able to erect a dividing fence. Consequently, both parties must perform a chatzaka to formalize the kinyan. 

In a similar manner, the Even HaEzel (Shcheinim 2:10) explains that the subdivision of a partnership is not equivalent to a sale or acquisition. The acts required here are simply a clarification of which section belongs to each of the parties. Consequently, for the clarification to complete, a demonstration is required by all parties.     

¹ The Beit Yosef(157) notes that according to the Haghot Maimoni, if a proper chazaka was performed then only one party would be required to perform it.

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