האי כשורא דמטללתא—This beam of a (temporary) hut

OVERVIEW רבינא teaches us that if one places a beam [to support the roof of a temporary hut] on his neighbor’s wall; if it stood there for less than thirty days it is not considered a חזקה;¹ if it remained there more than thirty days, without the owner of the wall protesting, it is considered a חזקה for the owner of that beam. The question arises; in reference to what, are we discussing whether or not it is a חזקה. Presumably it would seem that it is in reference to whether or not the owner of the beam may keep the beam on the other person’s wall indefinitely.² This type of a חזקה is called חזקת תשמישין; the right to use another person’s property. However this presents a difficulty according to some opinions. There is a dispute among the ראשונים as to how חזקת תשמישין is established. According to certain opinions (the 'תוס mentioned in רש"י דף ו,א ד"ה תוס' אחזיק להורדי and others) this חזקה is established immediately; as soon as the owner is aware that someone is using his property and he does not protest, the user acquires the right to continue using his neighbor’s property (in this manner) forever.³ Other ראשונים, however maintain that this חזקת תשמישין can be acquired only if it was utilized for three years, without any protest from the owner, and the user claims that the owner sold him or gifted him the right of usage.⁴

אומר רבינו תם דאמתניתין קאי דעד שלשים יום לא הוי חזקה והוי בחזקת שלא נתן – The ר"ת says; that this rule concerning the כשורא דמטללתא, is referencing back to **our משנה.**⁵ The ר"ת says that our גמרא is discussing a case where he placed (merely) a כשורא דמטללתא over both walls. רבינא says that the דין is that until thirty days have passed since he placed the כשורא דמטללתא on the dividing wall, it is not considered yet that he has a חזקה, for since it is a temporary structure the owner may not mind his using the wall and therefore it is still presumed that he did not pay for the dividing wall unless he brings proof to substantiate his claim. However – מכאן ואילך הוי בחזקת שנתן⁶ – From thirty days onward; once thirty days have passed since he placed the כשורא דמטללתא on the dividing wall and his neighbor did not protest it is presumed that he paid for his share in the dividing wall, and if he claims that indeed he paid it, he is not required to substantiate his claim. תוספות adds that by interpreting this case as referencing our משנה, (as opposed to חזקת תשמישין) there is an (additional) advantage.

And it properly understood that he mentions this ruling here and not in פרק חזקת הבתים. If we are discussing a חזקה of ownership and rights; then that belongs in פרק חזקת הבתים, not here in this פרק, where we are discussing the rules of division of property.⁷

SUMMARY In a case of סמך לו כותל and then he placed a כשורא דמטללתא over the party wall; if it remained there for (over) thirty days he is בחזקת שנתן.

THINKING IT OVER The ר"ת maintains that if we were discussing חזקת תשמישין, this case of כשורא דמטללתא should have been mentioned in חזקת הבתים. Why then does the גמרא mention here the laws of 'אחזיק לכושרי אחזיק להורדי וכו; they are certainly laws of חזקת תשמישין?⁸

footnotes: ¹ Even if the owner of the wall did not protest during the entire thirty day period, it is not a חזקה. ² See רש"י ד"ה לא הויא חזקה. ³ There is a further dispute in this opinion itself. Some maintain ('תוס mentioned in רש"י) that the מחזיק must have a claim, that he either bought this right or it was gifted to him. However others maintain that he needs no טענה, the mere fact that the owner did not protest indicates that the owner gave up his exclusive right to the property and is מוחל it to the user. ⁴ The question arises; why are thirty days required by a כשורא דמטללתא? It should either be immediately or after three years. Those that maintain that חזקת תשמישין is immediately; they will answer that since it was a beam which supported a temporary hut, the owner would not mind, for up to thirty days. However more than thirty days indicates that it is not temporary anymore, therefore if he does not protest after thirty days the user acquires the חזקת תשמישין for this כשורא. However according to the ר"ת who maintains that even חזקת תשמישין requires a three year חזקה, why is there a חזקה by a כשורא דמטללתא in only thirty days; it should require three years. תוספות addresses this issue ⁵ The משנה stated that if the neighbor built an adjacent wall next to the dividing wall (which belonged to the other party), he is liable for the expense of the party wall, even if he did not place a roof over both walls. The משנה continues there, that he is assumed not to have paid for the dividing wall unless he can substantiate his payment. The inference from the משנה may be that if he put a roof over both walls and claims that he paid for his share in the dividing wall he will be believed. The reason is, because the original owner would not permit him to place a roof over the party wall unless he paid up for his half of the wall. ⁶ The ר"ת explains that we are not discussing here חזקת תשמישין, for that would require a three year חזקה. Rather the second party who built the adjacent wall becomes obligated to pay for the party wall. Our גמרא is discussing at what point he is considered בחזקת שלא נתן and when he is considered בחזקת שנתן. It is obvious that if he built a finished roof over both walls without the owner protesting, that he is בחזקת שנתן immediately; otherwise why did the original owner of the dividing wall allow him to place a permanent roof over the dividing wall. It must be because he paid him already for his half of the wall. By a כשורא דמטללתא, however, which is a temporary roof; thirty days are required for him to be considered בחזקת שנתן. ⁷ See ‘Thinking it over’. ⁸ See footnote # 7. See רא"ש beginning of סי' יד.

עד שבעה יומי—Until seven days

OVERVIEW The גמרא teaches us that if someone places his beams on his neighbor’s wall for a סוכה, even if the owner of the wall did not protest, it is not a חזקה, until after (the) seven days (of סוכות) have passed. The owner of the wall does not mind if his neighbor uses his wall for a סוכה.¹ If, however, סוכות passes and the owner does not protest, and demand that he remove the beams, then he has established a חזקה to place his beams on his neighbor’s wall. תוספות will be discussing the inference of the statement עד שבעה יומי; namely that after seven days passed it is a חזקה. Seemingly this is incorrect.

It is not precisely (only) seven days that are required before it is considered a חזקה, it is actually not a חזקה until all the days of יום טוב pass, including שמע"צ (²ושמח"ת). For he cannot dismantle the סוכה on עצרת שמיני (or תורה שמחת); there is an איסור of dismantling on יום טוב. We cannot say that if the סוכה was not dismantled on רבה הושענא, then he has a חזקה. The owner does not mind that he keep the סוכה until after the completion of the entire יום טוב. Even if the owner would protest he would not be able to remove it.

SUMMARY The חזקה of a סוכה is only if the owner did not protest after the entire יום טוב passed.

THINKING IT OVER

1. Why could not the owner demand that he dismantle the סוכה on הושענה רבה towards the end of the day (if we were to assume that there is no obligation to eat in the סוכה on יום טוב)?
2. Why indeed did רבינא say עד שבעה יומין?

footnotes: ¹ A חזקה against an owner is established only if the action taken against him should cause him to protest. ² The גמרא and תוספות may (also) be discussing those places where there is no ספיקא דיומא.

ואי חבריה בטינא לאלתר הוי חזקה—And if he bonded it with cement, it is a חזקה immediately

OVERVIEW The גמרא states that if a כשורא דמטללתא is placed on a neighbor’s wall and cemented there, it is immediately considered a חזקה. This תוספות maintains that it is a חזקה in regards that the owner of the כשורא may keep it there forever, without having to remove it.

And the [ב"ם]רש says that the חזקות mentioned previously, such as אחזיק להורדי or אחזיק לנטפי are not חזקות which require three years to be established but rather they take effect immediately. If the aggrieved party is aware of the action taken and does not protest, it is a חזקה immediately, as the גמרא states here that if he bonded the beam to the wall with cement it is a חזקה immediately, similarly with the other חזקות mentioned previously in our גמרא.

SUMMARY חזקת תשמישין is accomplished immediately.

THINKING IT OVER Why (according to the רשב"ם וסייעתו) is there a difference between חזקת קרקע which requires three years and חזקת תשמישין where it is a חזקה לאלתר?⁴ 2. If חזקת תשמישין is established immediately by אחזיק להורדי וכו', why are thirty days required to establish a חזקה by a כשורא דמטללתא?⁵

footnotes: ¹ See in רש"י ו,א ד"ה תוס'. ² A חזקה to establish ownership of קרקע requires three years. However a חזקה to establish a right of usage in a neighbor’s property – חזקת תשמישין, that can be accomplished immediately (if the owner does not protest). ³ This viewpoint of the רשב"ם is in opposition to the viewpoint of the ר"ת brought in the previous תוס' ד"ה האי, who maintains that חזקת תשמישין also require three years to be established. The ר"ת maintains that the discussion about a כשורא דמטללתא is in regards to the question if he is to be considered בחזקת שנתן or not, in the case of סמך לו כותל אחר, but not in regard to חזקת תשמישין. ⁴ See נח"מ ו,א בגמ' ד"ה ונ"ל להסביר. ⁵ See סוכ"ד אות כד.

בשני צדי רשות הרבים—On the two sides of a public domain

OVERVIEW אביי taught that if there are two houses on opposite sides of a רה"ר each owner is required to build a מעקה for half his roof, so that there should be no היזק ראיה from one roof to the other. The question that arises is, did אביי mean that even if they are on opposite sides we are concerned for היזק ראיה, and certainly if they are on the same side adjacent to each other; or did אביי mean that only if they are on opposite sides is there a concern of היזק ראיה.

אומר רבינו יצחק דוקא בשני צדי רשות הרבים¹ – The ר"י says that the rule of 'עושה מעקה לחצי גגו וכו, is only if the two houses are on two opposite sides of a רה"ר**;** it is only then that we require each one to build a מעקה לחצי גגו שאין האחד מרגיש בחבירו כשעולה בגגו שיזהר ממנו – Since one neighbor is not aware when his friend goes up to his roof that he should be careful on account of him. Therefore there is a concern of היזק ראיה**.** However if the two houses are not בשני צדי רה"ר, but are close (or attached) to each other, then there is no requirement that they build a מעקה לחצי גגו. If someone is doing something on his roof, he will be immediately aware if his neighbor is coming up to the roof, since they are close to each other. There will be no היזק ראיה. תוספות proves this:

As the גמרא will shortly state; that a לחצר הסמוך גג requires a מעקה of ד' אמות, however between one roof to another roof there is no requirement to build a מעקה.

SUMMARY The rule of עושה מעקה לחצי גגו is only if the roofs are בשני צדי רה"ר but not if they are adjacent to each other.

THINKING IT OVER If there is no היזק ראיה by a גג when he is aware of his neighbor’s presence, then there should certainly be no היזק ראיה by a חצר, for he is surely aware of his neighbor’s presence. Why is there a difference between a חצר and a גג?!²

footnotes: ¹ The same rule applies for two sides of a רה"ר as the גמרא states. ² See נח"מ.

מהו דתימא מצי אמר ליה שקול אוזינקא כולי—You may have said; he can tell him ‘take your expenses, etc’.

OVERVIEW The גמרא states that (were it not for אביי) we may have thought that if one of the neighbors (A) build half the מעקה on his property, then his neighbor directly across the רה"ר (B), could coerce him (A) to finish building the entire מעקה on his (A) property (paying him for half the expense of the entire מעקה). Our תוספות will analyze this הוה אמינא (and the מסקנא).

תוספות asks: ואם תאמר והיכי הוי סלקא דעתין דמצי למימר ליה הכי – **And if you will say; how could it have entered our minds that he could have told him so; ‘**complete the מעקה and I will pay for the expense’ – דאטו משום דקדם זה ועשה הורע כחו ויכול לדוחקו זה לעשות כל הכותל – Is it justified that just because this one (who) went ahead and built half the מעקה, therefore his strength is diminished, to the extent that the other can force him to build the entire protective wall!¹ תוספות answers: ויש לומר דסלקא דעתין כיון דאם לא קדם זה ועשה זה² – And one can say that we may have thought that since if one of them would not have gone ahead and built half the מעקה, then either – הוה מצי למימר שקול אוזינקא וזיל ועשה כל הכותל – One would be entitled to say to the other; ‘either take from me half the expense of the מעקה and build the entire מעקה on your property – או הב לי אוזינקא ואעשה אני הכל ונרויח בין שנינו שלא נצטרך להעדיף – Or give me half the expense and I will build the entire מעקה on my property. The reason either one of them can coerce his neighbor to accept either of these two options is because the initiator can claim that by doing it in this manner - that one of us builds the entire מעקה on his property then we will both profit, for we will not need to build the extension.³ It would follow that – השתא נמי מצי למימר ליה הכי – Now that ראובן built half the מעקה, שמעון should still be able to tell him to finish building the מעקה on s'ראובן property. This way they will be each saving the cost of the extension; therefore –

אביי comes to teach us that שמעון cannot tell ראובן you must finish building the מעקה to save the expense of the extension. The reason is since ראובן already made half the מעקה and שמעון said nothing to him beforehand. The fact that שמעון did not approach ראובן initially with this offer, that either you make the entire מעקה or I will make the entire מעקה, indicates that שמעון was not interested in making the entire מעקה on his property; as the גמרא states that he does not want to weaken his existing wall.⁴ Therefore by not approaching ראובן initially (before ראובן built half the מעקה), שמעון relinquished his right of coercing ראובן to build the entire מעקה on one property.⁵

SUMMARY Two people on opposite sides of a רה"ר; either one of them can coerce the other to accept the proposition that one build the entire wall and the other pay for half the expenses. The decision as to who builds, etc. lies with the one accepting the option, not the initiator. This explains the הו"א that he could coerce the builder of half the מעקה to complete it. The מסקנא is that since he did not make this offer (in order not to harm his wall), he relinquished the right to enforce this option.

THINKING IT OVER תוספות states that originally each neighbor has the option to coerce his partner to either build the entire מעקה, or have the initiator build it entirely. Why indeed do they have this right to coerce the neighbor?! Why cannot the neighbor claim I wish to have just half a wall on my property, even if it cost a little more?!⁶

footnotes: ¹ Originally neither of the two can force the other to build a complete מעקה. If in fact ראובן built half the מעקה first, why can שמעון force ראובן to complete the entire מעקה? It is not logical to assume that s'ראובן position has become weaker because he built half the מעקה first. If originally שמעון could not coerce ראובן to build the מעקה why would I even think that he can coerce him now! ² The הגהות הב"ח deletes this (second) זה. ³ If we will both build the מעקה, half on each side of the רה"ר, then both of us will have to pay for more than half a מעקה, for we will need to extend the מעקה more than halfway; as the גמרא clearly states ומעדיף. However if one of us builds the entire מעקה then we will both save the expense of this extension. Therefore since originally שמעון could have coerced ראובן to either build the entire מעקה (or pay שמעון to build the entire מעקה), it is apparent that שמעון did have some right over ראובן; to disallow him to build (only) half a wall. ⁴ This understanding of תוספות serves to integrate the תירוצים of the גמרא and תוספות. See מהר"ם. ⁵ The only right שמעון had, was to offer ראובן a choice. If שמעון is not interested in building on his property, then there is no choice and hence also no right. ⁶ See נתיה"מ (ביאורים) סי' קס סק"א ועי' בבל"י סי' קמג.

שתי חצרות זו למעלה מזו—Two courtyards one above the other

OVERVIEW The גמרא discusses the case of two adjoining חצרות, where the ground level of one is higher than the other. There is a dispute whether the owner of the upper חצר must contribute to that part of the wall which is below his ground level. However there is no dispute as to the responsibility of the lower s'חצר owner. He is required to assist in building the dividing wall for the full ד' אמות above the ground level of the upper חצר.¹ תוספות will be discussing the reason for this ruling.

תוספות asks: ואם תאמר ותחתון למה יסייע לעליון – And if you will say; and why should the owner of the lower חצר assist the owner of the upper חצר to build up to four אמות above the ground level of the upper חצר?! דמכי מטי לארבע אמות ולא יוכל התחתון לראות בחצר העליון יבנה העליון – For when the wall reaches four אמות from the ground level of the lower חצר, at which point the owner of the lower חצר cannot see into the upper חצר**;** that should be sufficient for the בעל התחתון, since he can no longer cause היזק ראיה to the חצר העליון. In order to prevent היזק ראיה from the חצר העליון to the תחתון, that upper part of the wall should be built by the owner of the upper חצר; who alone is causing the היזק ראיה. תוספות answers: ואומר רבינו תם כגון שחצר התחתון אינו נמוך אלא² אצל חצרו של עליון (אלא מצד א')³ – And the ר"ת says that we are discussing a situation where for instance that the lower חצר is not lower than the upper חצר in its entirety, but rather it is lower only where it is close to the חצר of his higher neighbor (only on one side) – ומצד א' הוא גבוה כחצר העליון שיוכל לראות שם – However from the other side of the lower חצר where it is not close to the חצר העליון, there the חצר התחתון is as high as his neighbor’s חצר (as the חצר העליון). The חצר התחתון slopes. It is low adjacent to the חצר העליון and it rises when it is at a distance from the boundary of the חצר העליון, in such a manner that it is possible to see from the rise in the חצר התחתון into the חצר העליון, even after the wall, of ד' אמות high from the קרקע חצר התחתון, has been built. Therefore since the בעל חצר התחתון can see into the חצר העליון he must contribute to the entire wall, until it is ד' אמות high from קרקע חצר עליון (and the rise in חצר התחתון). תוספות offers an alternate solution: ורבינו יצחק מפרש דהתחתון מזיק לעליון כי קאי עליון⁴– And the ר"י explains that it is not necessary to assume that we are discussing a sloping חצר; but rather a regular חצר, that in its entirety is lower than the upper חצר. The reason the תחתון must assist the עליון up to ד' אמות from the ground of the עליון, is for the תחתון damages the עליון when the עליון is standing [at the edge of his own חצר]; next to the dividing wall, which is ד' אמות higher than the ground of the תחתון. It is however less than ד' אמות higher than the ground of the עליון. Therefore when the עליון stands next to the (original [shortened] wall) he can be seen by the תחתון, if the תחתון is not immediately next to the wall, but at some distance from it. תוספות proves his contention that even though the wall is ד' אמות high from the ground of the תחתון, the עליון can be seen when he stands. ⁵ כדאמרינן לעיל⁶ כי קאימנא חזו לי⁷ – As the גמרא previously stated, ‘when I stand up the people of the ר"רה can see me’. תוספות concludes

And therefore; since the תחתון can see the עליון standing he is required to assist up to four אמות above the ground level of the upper חצר; to prevent the בעל התחתון from seeing the בעל העליון even when he stands.

SUMMARY There are two ways to understand why the תחתון must build up to ד' אמות above the ground level of the חצר העליון. A. The חצר of the תחתון slopes upwards as it recedes from the dividing wall enabling the תחתון to see over the lower wall. B. The תחתון can (usually) see the עליון above the lower wall when the עליון stands up [close to the wall].

THINKING IT OVER

1. תוספות assumes that the גמרא maintains that the תחתון must assist in building the wall ד' אמות above the ground level of the עליון.⁸ How does תוספות deduce this?⁹
2. According to the פירוש ר"י, would there be any difference depending on how wide the חצר התחתון is (from the wall to the opposite boundary)?¹⁰
3. Why was it necessary for תוספות to prove that it is possible to see someone over a ד' אמות high wall, from the previous גמרא?¹¹ It seems quite factual.¹²
4. What are the relative advantages and disadvantages of both פירושים in תוספות? What are the practical differences להלכה?

footnotes: ¹ See ‘Thinking it over’ # 1. ² The מהרש"ל keeps the word אלא, while the מהרש"א deletes it. ³ See מסורת הש"ס that others delete this phrase (in parenthesis). ⁴ The הגהות הב"ח amends this to read עליון בשפת חצירו כדאמרינן. ⁵ See ‘Thinking it over’ # 3. ⁶ Concerning two roofs on opposite sides of a ר"רה. ⁷ It is assumable that a roof is more than ד' אמות higher than the רה"ר; nevertheless, the people of the ר"רה can see the בעל הגג when he stands. ⁸ See footnote # 1. ⁹ See מטה יוסף אות קנו. ¹⁰ See נח"מ. ¹¹ See footnote # 5. ¹² See (עד"ז in) סוכ"ד אות מב ד"ה אבל דעת.