Talmud - Bava Batra 3a בבא בתרא ג׳ א׳

so that I can hide from you at that time and avoid coming under your gaze.

§ The Gemara has so far presented one version of the discussion of the mishna. A different version relates the discussion as follows: The Sages initially assumed: What is the meaning of the term meḥitza mentioned in the mishna? A division, not a partition, as it is written: “And the division of [meḥetzat] the congregation was” (Numbers 31:43). According to this interpretation, the mishna means to say: Since they wished to divide the jointly owned courtyard, they build a proper wall in the center even against the will of one of the partners. Apparently, it may be concluded that damage caused by sight is called damage.

The Gemara objects to this conclusion: But why not say: What is the meaning of the term meḥitza mentioned in the mishna? It means a partition. This usage would be as we learned in a baraita: Consider the case where a partition of [meḥitzat] a vineyard which separates the vineyard from a field of grain was breached, resulting, if the situation is not rectified, in the grain and grapes becoming items from which deriving benefit is prohibited. The owner of the field of grain may say to the owner of the vineyard: Build a partition between the vineyard and the field of grain. If the owner of the vineyard did so, and the partition was breached again, the owner of the field of grain may say to him again: Build a partition. If the owner of the vineyard neglected to make the necessary repairs and did not properly build a partition between the fields, the grain and grapes are rendered forbidden due to the prohibition of diverse kinds planted in a vineyard, and he is liable for the monetary loss.

The Gemara concludes stating the objection: And according to the understanding that the term meḥitza means a partition, one can infer: The reason that they build a wall is that they both wished to make a partition in their jointly owned courtyard. But if they did not both wish to do so, the court does not obligate the reluctant partner to build such a wall, although his neighbor objects to the fact that the partner can see what he is doing in his courtyard. Apparently, it may be concluded that damage caused by sight is not called damage.

The Gemara rejects this argument: If so, the words: They build the wall, are imprecise, as the tanna should have said: They build it, since the wall and the partition are one and the same. The Gemara retorts: Rather, what is the meaning of the term meḥitza? A division. If it is so that the term meḥitza means a division, the words: Who wished to make a division, are imprecise, as the tanna should have said: Who wished to divide. The Gemara answers: The phrasing of the mishna is as people commonly say: Come, let us make a division. Consequently, the mishna can also be understood as referring to two people who wished to divide a jointly owned area.

The Gemara asks, according to the understanding that meḥitza means division: But if damage caused by sight is called damage, why does the tanna specifically teach that if they wish, they build a wall? Even if they did not both wish to do so, it should also be possible to compel the reluctant party to build a wall between them. Rabbi Asi said that Rabbi Yoḥanan said: Our mishna is referring to a courtyard that is not subject to the halakha of division. Joint owners of a courtyard cannot be compelled to divide the courtyard unless each party will receive at least four square cubits of the courtyard. And therefore, this ruling of the mishna applies only in the case where they both wished to divide the courtyard.

The Gemara asks: According to this understanding, what is the tanna teaching us? Is he teaching us that when a courtyard is not subject to the halakha of division, if they nevertheless wished to do so, they divide it? But we already learned this in the latter clause of a different mishna (11a): When do they not divide the courtyard because it is not large enough to compel division? When the joint owners do not both wish to divide it. But when both of them wish to divide it, they divide it even if it is smaller than this, i.e., smaller than four square cubits for each party. The Gemara answers: If we had learned this halakha only from there, I would say that they divide the courtyard even if it is smaller than this by constructing a mere partition of pegs, which does not prevent invasion of privacy. Therefore, the tanna teaches us here in this mishna that if they wish to divide the courtyard they can be compelled to build a proper wall.

The Gemara asks: If so, let the tanna teach this mishna and not teach that other mishna, as this mishna teaches more details than the later one. The Gemara answers: It was necessary for the tanna to teach the other mishna to introduce the last clause of that mishna, which states: And jointly owned sacred writings that are contained in a single scroll should not be divided even if both owners wish to do so.

The Gemara brings a different version of the previous discussion: And if they wished to divide the courtyard, what of it? What forces them to build the wall? If one of the parties does not wish to build a wall, let him retract. Rav Asi said that Rabbi Yoḥanan said that the mishna is not discussing a case where they merely reached a verbal agreement to divide the courtyard, but rather with a case where each party performed an act of acquisition with the other, confirming their respective commitments. Therefore, neither side can retract.

The Gemara asks: Rather than teaching us a case where the courtyard is not subject to the halakha of division, but nevertheless they wished to divide it, let the mishna teach us a case where the courtyard is subject to the halakha of division, even if they did not both wish to divide it. The Gemara answers: Had it taught us only a case where the courtyard is subject to the halakha of division that applies even if they did not both wish to divide it, I would say that in a case where the courtyard is not subject to the halakha of division then even if they both wished to divide it, if one of the parties does not wish to build a proper wall he cannot be compelled to do so. Therefore, the mishna teaches us that he is compelled to participate.

The Gemara asks: But how can you say this? Doesn’t the latter clause of the mishna (11a) teach: When do they not divide the courtyard because it is not large enough to compel division? When the joint owners do not both wish to divide it. But when both of them wish to divide it, they divide it even if it is smaller than this. What, is this clause of the mishna not referring to the fact that either one can force the other to build a proper wall? The Gemara answers: No, it is referring to a mere partition of pegs and not to an actual wall.

The Gemara asks: If so, let the tanna teach this mishna and not teach that other mishna, as this mishna teaches more details than the later one. The Gemara answers: It was necessary to teach the other mishna for the last clause of that mishna, which states: And jointly owned sacred writings that are contained in a single scroll should not be divided even if both owners wish to do so. This concludes the alternative version of the discussion.

The Gemara continues its analysis of the mishna: To what case did you interpret the mishna to be referring? To a case where the courtyard is not subject to the halakha of division. But if there is no halakha of division, then if they wished to divide the courtyard, what of it; how can either one force the other to build a wall? If the parties no longer want to build a wall, let them retract. Rabbi Asi said that Rabbi Yoḥanan said: It is referring to a case where each party performed an act of acquisition with the other, confirming their respective commitments. Therefore, neither party can retract.

The Gemara asks: But even if each party performed an act of acquisition with the other, what of it? It is merely a verbal acquisition, meaning there was no actual transfer of property, but only a verbal agreement to act in a certain manner in the future and not a true act of acquisition. The Gemara answers: They performed an act of acquisition with the other with regard to directions, i.e., not only did they verbally agree to divide the courtyard, they also determined which of them would get which part of the courtyard. Consequently, the acquisition related to actual property, a particular plot of land. Rav Ashi said: For example, this one walked through his designated portion and performed an act demonstrating ownership there, and that one walked through his designated portion and performed an act demonstrating ownership there.

§ The mishna teaches: In a place where it is customary to build such a wall with non-chiseled stone [gevil], or chiseled stone [gazit], or small bricks [kefisin], or large bricks [leveinim], they must build the wall with that material. The Gemara identifies the various building materials: Gevil refers to stones that are not planed. Gazit means stones that are planed, as it is written: “All these were of costly stones, according to the measures of chiseled stones [gazit], sawed with saws, within and without” (I Kings 7:9). This teaches that chiseled stones are those that have been planed and smoothened. Kefisin refers to small bricks. Leveinim means large bricks.

Rabba, the son of Rava, said to Rav Ashi: From where do you know that gevil refers to stones that are not planed, and this extra handbreadth that a wall of gevil has compared to what a wall of gazit has is for the protruding edges? That is, a wall of gevil is six handbreadths thick because the stones have not been planed and smoothened, and therefore protrude somewhat outward. Perhaps gevil refers to planed stones that are half the thickness of gazit, namely, just two and a half handbreadths, as compared to gazit, which is five handbreadths thick; and this extra handbreadth in a wall of gevil is for the space between the two rows [urbei]. That is, a wall of gevil is actually two walls of planed stones that are each two and a half handbreadths thick; and the two walls are separated by one handbreadth, which is later filled in with mortar for added strength.

A proof for this explanation can be brought from what we say, i.e., that kefisin are small bricks, whereas leveinim are large bricks, twice the thickness of small bricks. And this extra handbreadth of thickness that a wall of kefisin has compared to what a wall of levinim has is for the space between the two rows of small bricks.

Rav Ashi said to him: And according to your reasoning, from where do we derive that kefisin are small bricks? Rather, the Sages learned this as a tradition. And so too, they learned as a tradition that gevil refers to non-planed stones.

The Gemara presents a different version of the discussion. There are those who say that Rav Aḥa, son of Rav Avya, said to Rav Ashi: From where do you know that kefisin are small bricks, one-half the width of large bricks, and this extra handbreadth of thickness that a wall of kefisin has compared to what a wall of leveinim has covers the space between the two rows of kefisin? Perhaps you should say what are kefisin? Stones that are not planed, and this extra handbreadth of thickness that a wall of kefisin has in comparison to what a wall of leveinim has is for the protruding edges. And proof for this explanation can be brought from what we say, i.e., that gevil refers to stones that are not planed, whereas gazit means planed stones, and this extra handbreadth of thickness that a wall of gevil has compared to what a wall of gazit has is for the protruding edges.

Rav Ashi said to him: And according to your reasoning, from where do we derive that gevil are stones that are not planed? Rather, the Sages learned this as a tradition. Here too, they learned as a tradition that kefisin are small bricks.

Abaye said: Learn from it that the space left between the two rows of a wall is always a handbreadth. The Gemara comments: This matter applies only when the two rows of the wall are filled in with mortar. But when they are filled in with gravel [berikhsa], more space is required. And there are those who say that this matter applies only when the two rows of the wall are filled in with gravel. But when mortar is used to fill in the space, not as much space is required, and less than a handbreadth suffices.

§ The Gemara asks: Is this to say that in the case of a wall of chiseled stone, if for every four cubits of height there are five handbreadths of thickness the wall will stand, and if not it will not stand, as this is the required ratio between a wall’s height and its thickness? But wasn’t there the one-cubit-thick wall separating the Holy of Holies from the Sanctuary of the Temple [amah teraksin] separating the Holy of Holies from the Sanctuary, which was thirty cubits high and its thickness was only six handbreadths and nevertheless stood? The Gemara answers: Since there was an extra handbreadth of thickness, it was able to stand even to such a great height.

The Gemara asks: And what is the reason that in the Second Temple they did not fashion an amah teraksin to separate between the Holy of Holies and the Sanctuary, as they had done in the First Temple? The Gemara answers: When a partition stands even though it is only six handbreadths thick, it is able to remain standing up to thirty cubits in height. But it will not be able to stand if it is more than that height. The Second Temple was taller than the First Temple, and therefore the partition separating the Holy of Holies from the Sanctuary also had to be higher.

The Gemara comments: And from where do we derive that the Second Temple was taller than the First Temple? As it is written: “The glory of this latter house shall be greater than that of the former” (Haggai 2:9). Rav and Shmuel disagree about the meaning of this verse, and some say it was Rabbi Yoḥanan and Rabbi Elazar who disagreed as to its meaning. One of them said that it means that the Second Temple will be greater in the size of its structure, i.e., taller. And one of them said

Traduction : The William Davidson digital edition of the Koren Noé Talmud, with commentary by Rabbi Adin Even-Israel Steinsaltz.

Bava Batra 3a examines whether visual intrusion counts as damage, debating if meḥitza means a dividing wall or a mere partition between properties.