Babylonian Talmud: Tractate Baba Bathra

Folio 60a

For closing a window¹  a right is established immediately [if the action is unchallenged], because a man will not allow his light to be obstructed without protest.

IF A MAN TAKES A ROOM IN ANOTHER [ADJOINING] COURTYARD, HE SHOULD NOT MAKE AN ENTRANCE TO IT IN A COURTYARD WHICH HE SHARES WITH OTHERS. What is the reason? — Because he brings too many visitors [through the courtyard].²  Look then at the following clause: HE MAY IF HE PLEASES BUILD AN INNER CHAMBER IN HIS HOUSE AND THEN BUILD AN UPPER CHAMBER OVER HIS HOUSE AND MAKE THE ENTRANCE FROM THE HOUSE. Will not this also bring more people through the courtyard? — R. Huna said: When it says here [that he builds] a room, It means that he divides one of his rooms into two, and when it says [that he builds] an upper chamber, it means that he makes a balcony.³

MISHNAH. IN A COURTYARD WHICH HE SHARES WITH OTHERS A MAN SHOULD NOT OPEN A DOOR FACING ANOTHER PERSON'S DOOR NOR A WINDOW FACING ANOTHER PERSON'S WINDOW. IF IT IS SMALL HE SHOULD NOT ENLARGE IT, AND HE SHOULD NOT TURN ONE INTO TWO. ON THE SIDE OF THE STREET, HOWEVER, HE MAY MAKE A DOOR FACING ANOTHER PERSON'S DOOR AND A WINDOW FACING ANOTHER PERSON'S WINDOW, AND IF IT IS SMALL HE MAY ENLARGE IT OR HE MAY MAKE TWO OUT OF ONE.

GEMARA. Whence are these rules derived? — R. Johanan said: From the verse of the Scripture, And Balaam lifted up his eyes and he saw Israel dwelling according to their tribes.⁴  This indicates that he saw that the doors of their tents did not exactly face one another, whereupon he exclaimed: Worthy are these that the Divine presence should rest upon them!

IF IT IS SMALL HE SHOULD NOT ENLARGE IT. Rami b. Hama understood from this that if the door is of four cubits the owner should not make it eight because this would entitle him to eight cubits in the courtyard,⁵  but if it is of two cubits he is quite in order in making it four.⁶  Said Raba to him: [This is not so, because] the other can say to him, I can preserve my privacy if you have a small doorway but not if you have a large one.⁷

HE SHOULD NOT TURN ONE DOOR INTO TWO. Rami b. Hama understood from this that if the door is four cubits wide, he should not turn it into two doors of two cubits each, because this would entitle him to eight cubits in the courtyard,⁸  hut he would be quite in order in turning a door of eight cubits into two of four cubits each.⁹  Said Raba to him: [This is not so, because] the other can say to him, I can preserve my privacy from you if you have one door, but if you have two doors I cannot.¹⁰

ON THE SIDE OF THE STREET, HOWEVER, HE MAY MAKE A DOOR FACING ANOTHER PERSON'S DOOR. [The reason is] because he can say to him: In any case you have to preserve your privacy from the eyes of the passers-by¹¹  [and therefore you may as well do so from me also].

MISHNAH. A CAVITY MUST NOT BE MADE UNDER A PUBLIC PLACE, [TO WIT,] PITS, DITCHES AND CAVES. R. ELIEZER PERMITS THIS PROVIDED [THAT THE SURFACE IS STRONG ENOUGH TO BEAR THE PASSAGE OF A WAGON LOADED WITH STONES. SPARS OR BEAMS MUST NOT BE ALLOWED TO PROJECT [FROM THE WALL OF A HOUSE] OVER THE PUBLIC WAY. THE OWNER MAY, HOWEVER, IF HE DESIRES DRAW BACK HIS WALL FROM THE STREET AND THEN ALLOW THEM TO PROJECT. IF A MAN BUYS A COURTYARD IN WHICH ARE SPARS AND BEAMS [PROJECTING], HE HAS A PRESCRIPTIVE RIGHT TO KEEP THEM THERE.

GEMARA. [R. ELIEZER SAYS etc.] Why do the Rabbis forbid this? — Because the surface may wear thin without being noticed.¹²

SPARS AND BEAMS MUST NOT BE ALLOWED TO PROJECT etc. R. Ammi had a spar projecting over an alley-way,¹³  and another man had a spar projecting over a public way. [Some passers-by objected]¹⁴  and he was summoned before R. Ammi. He said to him, Go and cut it down. But, said the man, you, Sir, also have a projecting spar? Mine, he replied, projects over an alley-way the residents of which have given me their consent. Yours projects over a street; who is there to surrender the [public's] rights?

R. Jannai had a tree which overhung the public way, and another man also had a tree overhanging the street. Some passers-by objected and he was summoned before R. Jannai. He said to him:

1. By building an obstruction in front of it.
2. Presumably he builds the additional rooms for letting purposes.
3. And though he thus obtains additional rooms for letting. he is perfectly within his rights.
4. Num. XXIV, 2.
5. V. supra 55a.
6. Because even a door of two cubits entitles him to four cubits in the courtyard.
7. According to Raba, the right to privacy overrides the right to yardspace.
8. Four for each door.
9. Since he would still only have eight cubits yard space.
10. Because if one door is shut the other may still be open.
11. Who can look through the door and the windows.
12. Cf. supra 27b.
13. Which is private property.
14. These words occur in our texts, but in brackets.

Go away now and come again tomorrow. During the night he sent and had his own tree cut down. On the next day the man came back and he told him to go and cut the tree down. He said: But you, Sir, also have one? He replied: Go and see. If mine is cut down, cut yours down, and if mine is not cut down you need not cut yours down. What was R. Jannai's idea at first [when he kept his tree] and afterwards [when he had it cut down]? — At first he thought that passers-by were glad of it because they could sit in its shade, but when he saw that they objected to it he had it cut down. Why did he not say to the man, Go and cut yours down and then I will cut down mine? — In conformity with the maxim of Resh Lakish, who said: [It is written], Hithkosheshu wakoshu:¹  trim yourselves and then trim others.

HE MAY, HOWEVER, IF HE DESIRES DRAW BACK HIS WALL FROM THE STREET AND ALLOW THEM TO PROJECT. The question was asked: If a man draws back [his wall] and does not at once let any beams project, may he do so subsequently?²  — R. Johanan said that though he has drawn back [the wall] he may still make projecting beams, while Resh Lakish said that once he has drawn back he cannot later make projecting beams. R. Jacob said to R. Jeremiah b. Tahlifa: I will explain this to you. On the question of projecting beams there is no difference of opinion [between the authorities], and both hold that they are permitted. Where they differ is on the question whether he may restore the walls to their former position, and the above statement should be reversed, [i.e.,] R. Johanan said that he may not go back to the original position and Resh Lakish said that he may. R. Johanan ruled that he may not, In accordance with the dictum of Rab Judah,³  who said: A path [between two fields] over which the public has established a right of way must not be damaged. Resh Lakish, however, says that he may; we rule thus [in the case of the path] because there is no other space available, but here [in the case of the street] there is still plenty of space available.⁴

IF A MAN BUYS A COURTYARD IN WHICH ARE SPARS AND BEAMS PROJECTING, HE HAS A PRESCRIPTIVE RIGHT TO KEEP THEM. R. Huna said: If the wall falls down he may build it [as it was before]. An objection was raised [against this from the following]: 'It is not proper to stucco or decorate or paint [our houses at the present time].⁵  If a man buys a house which is stuccoed or decorated or painted, he is entitled to keep it so. If it falls down, he should not rebuild it [so]'?⁶  — Where the prohibition is based on religious grounds, the case is different.⁷

Our Rabbis taught: A man should not stucco the front of his house with cement, but if he mixes sand or straw with it he may.⁸  R. Judah Says: A mixture of sand makes the cement stony,⁹  and therefore its use is forbidden, but straw is permitted.

Our Rabbis taught: When the Temple was destroyed for the second time,¹⁰  large numbers in Israel became ascetics, binding themselves neither to eat meat nor to drink wine. R. Joshua got into conversation with them and said to them: My sons, why do you not eat meat nor drink wine? They replied: Shall we eat flesh which used to be brought as an offering on the altar, now that this altar is in abeyance? Shall we drink wine which used to be poured as a libation on the altar, but now no longer? He said to them: If that is so, we should not eat bread either, because the meal offerings have ceased. They said: [That is so, and] we can manage with fruit. We should not eat fruit either, [he said,] because there is no longer an offering of firstfruits. Then we can manage with other fruits [they said]. But, [he said,] we should not drink water, because there is no longer any ceremony of the pouring of water.¹¹  To this they could find no answer, so he said to them: My sons, come and listen to me. Not to mourn at all is impossible, because the blow has fallen. To mourn overmuch is also impossible, because we do not impose on the community a hardship which the majority cannot endure, as it is written, Ye are cursed with a curse,¹²  yet ye rob me [of the tithe], even this whole nation.¹³  The Sages therefore have ordained thus. A man may stucco his house, but he should leave a little bare. (How much should this be? R. Joseph says, A cubit square; to which R. Hisda adds that it must be by the door.)¹⁴  A man can prepare a full-course banquet, but he should leave out an item or two. (What should this be? R. Papa says: The hors d'oeuvre of salted fish.) A woman can put on all her ornaments, but leave off one or two. (What should this be? Rab said: [Not to remove] the hair on the temple.)¹⁵  For so it says, If I forget thee, O Jerusalem, let my right hand forget, let my tongue cleave to the roof of my mouth if I remember thee not, if I prefer not Jerusalem above my chief joy.¹⁶  What is meant by 'my chief joy'?¹⁷  R. Isaac said: This is symbolised by the burnt ashes¹⁸  which we place on the head of a bridegroom. R. Papa asked Abaye: Where should they be placed? [He replied]: Just where the phylactery is worn, as it says, To appoint unto them that mourn in Zion, to give then a garland [pe'er] for ashes [epher].¹⁹  Whoever mourns for Zion will be privileged to behold her joy, as it says, Rejoice ye with Jerusalem etc.²⁰  It has been taught: R. Ishmael ben Elisha said: Since the day of the destruction of the Temple we should by rights bind ourselves not to eat meat nor drink wine, only we do not lay a hardship on the community unless the majority can endure it. And from the day that a Government has come into power which issues cruel decrees against us and forbids to us the observance of the Torah and the precepts²¹  and does not allow us to enter into the 'week of the son'²²  (according to another version, 'the salvation of the son'),²³  we ought by rights to bind ourselves not to marry and beget children, and the seed of Abraham our father would come to an end of itself. However, let Israel go their way: it is better that they should err in ignorance than presumptuously.²⁴

1. Zeph. II, 1. The English version translates, 'Gather yourselves together, yea, gather together.' Resh Lakish, however, derives it from the word kash, stubble, and translates, 'Remove the stubble from between your own eyes, and afterwards remove it from others.'
2. I.e., has he not tacitly abandoned his right to the intervening space?
3. Whom the law follows in this matter, so that, as usually in a dispute between R. Johanan and Resh Lakish, the law follows the former.
4. In the original width of the street.
5. Since the destruction of the Temple.
6. Which seems to show that where a right has been acquired by prescription, if it once lapses it cannot he resumed.
7. From where, as here, the question is only one of causing damage.
8. Because this makes the hue less bright.
9. [H], which is a valuable preservative for the wall. [For the various suggestions as to the derivation of the word. V. Krauss. op. cit. I, 299.]
10. In 70 C.E.
11. On the Feast of Tabernacles. v. Suk. IV.
12. This is taken to mean: 'You have laid on yourselves an adjuration (to bring the tithe).'
13. Malachi, III, 9. It is assumed that the adjuration would not have been effective unless the whole nation had taken part in it; which is taken to show that we do not impose a hardship unless we are sure that the majority can stand it.
14. V. supra p. 219, no. 5.
15. Which was usually removed as a mark of elegance.
16. Ps. CXXXVII, 5, 6.
17. Lit., 'Head of my joy'.
18. Lit., 'ashes from the hearth'.
19. Isa. LXI, 3. The word pe'er is supposed to refer to the phylacteries on the basis of the verse, Bind thy headtire (pe'erka) upon thee. (Ezek. XXIV, 17.)
20. Isa. LXI, 10.
21. The reference is to the persecution instituted by the Emperor Hadrian after the revolt of Bar Kochba, 135 C.E.
22. [H] I.e., the rite of circumcision. [So Rashb. and Rashi, Sanh. 32b. This term is said to have been adopted by the Jews as a disguise during the Hadrianic persecutions when the rite was prohibited in order to remove any suspicion that they were engaged in a religious observance. Others explain the term as denoting the seven days festivities that followed the birth of a child. V. Bergmann. J., M.G.W.J. 1932, 465ff; and cf. Krauss, op. cit. II, 438. The expression 'the week of the daughter', [H] also occurs in Nahmanides' Torath Ha'adam, 35b. This is to be taken as a proof against the usual identification of 'the week of the son' with 'the rite of circumcision', v. Mann J. H.U.C. 1924, p. 325, n. 3.]
23. [ [H] 'The redemption of the son' (Rashi): or, 'The birth of a son' (R. Tam); Tosaf. B.K. 80a, s.v. [H]]
24. And therefore we do not tell them this, since in any case they would go on marrying and begetting children.