Shechenim - Chapter 2

In cities, by contrast, different rules apply, and a division should be made even if the courtyard is smaller, as the Rambam states in his Commentary on the Mishnah (Bava Batra 1:6).
The Maggid Mishneh and the Shulchan Aruch (Choshen Mishpat 172:1) explain further the rationale for the difference between the two. In a courtyard in a country village, the homeowners acquired the land by taking possession of ownerless property. Hence, it is divided according to the above principles. In a city, however, the land is already divided when purchased or when inherited, and everyone knows which portion of the land is his.

This space is granted so that a person leading a donkey with a burden could unload that burden outside the entrance, as stated in Halachah 3.

Chapter 1, Halachah 4. As the Rambam states in his Commentary on the Mishnah (loc. cit.), this space is used for cattle, sheep and the like.

See Hilchot Shabbat 16:16, from which it appears that ten cubits is the largest possible size for an entrance.
The Maggid Mishneh explains that if the entrance is small – e.g., only two cubits wide – the owner is given only an area two cubits by four cubits. In his Kessef Mishneh (based on the opinion of Rabbenu Asher), Rav Yosef Karo differs and maintains that a person is always given a space at least four cubits by four cubits in front of his entrance. For in a smaller space, he would not be able to unload a burden. And in his Shulchan Aruch (Choshen Mishpat 172:1), Rav Karo quotes the latter view alone.

There is a debate among the commentaries with regard to the status of this four-cubit-by-four-cubit space when the courtyard is not divided. Some consider it to be equivalent to the private property of the owner of the entrance. Others maintain that though it is granted to him for his use, it still can be used by the other partner in the courtyard (Maggid Mishneh in his gloss on Halachah 3).

This teaches that not only is a person granted an advantage over his partner if he owns two houses in a courtyard, but even if he owns only one house and that house has many entrances, he is granted four cubits for each of the entrances.

It is considered as if the other entrances were closed. The Ra’avad objects to the Rambam’s ruling, maintaining that the owner must actually build a structure that singles out one of the entrances. The later commentaries and the Shulchan Aruch (Choshen Mishpat 172:3) follow the Rambam’s approach.

A Greek structure like a porch, with two or three walls. Sometimes it would have a roof with a skylight, and other times it would have no roof at all. See Hilchot Mezuzah 6:3, Hilchot Shabbat 17:35 and Hilchot Sukkah 4:8-9.

A room at the entrance to a gate.

In his Commentary on the Mishnah (Ma’asrot 3:6), the Rambam defines a porch as “An elevated place within the courtyard where there are steps leading to the second-story lofts.”

For all the inhabitants of these structures enter through the porch, and that is where they will unload their burdens.

For the four cubits are granted to enable a person to unload his burden, and that is not necessary with regard to a chicken coop.

If the open portion is facing the courtyard, it is obvious that he is not granted the extra four cubits, for he can unload his donkey in the uncovered portion. Even if the closed portion faces the courtyard, he is not granted the extra four cubits, for he can lead his donkey through the covered portion and unload it in the uncovered portion.

For we assume that ultimately the owner will open the entrance and begin using it again (Sefer Me’irat Einayim 172:16).

Since it is no longer functional as an entrance, we assume that the owner was willing to forgo his right to four cubits in favor of the other inhabitants of the courtyard (Maggid Mishneh).
The Ramah (Choshen Mishpat 172:7) quotes the opinion of the Rivash (Responsum 248) and emphasizes that although we say that the owner forfeits the four cubits in front of his entrance, he does not forfeit his portion in the courtyard and is given an appropriate share if the courtyard is divided.

When a structure is smaller than this, we do not consider it useful as a home, and it will not be necessary to unload a donkey in front of it.

Our translation follows the gloss of the Maggid Mishneh. The Ra’avad offers an interpretation that explains that all the structures in this courtyard are smaller than this minimum size.

Including the four cubits in front of his entrance if his house is large enough.

Although there are also animals kept in the courtyard, the manure accumulates primarily from the excrement and refuse from the houses that is deposited there. Therefore, it is divided according to the number of houses (Maggid Mishneh).

We have chosen this translation based on the gloss of the Maggid Mishneh. See also Chapter 5, Halachah 15.

For it is, like most government levies, a head tax.

I.e., though neither partner can compel the other to accept the division. If they both desire, the division should be carried out.
This concept is obvious; the Rambam – and his source, Bava Batra 1:6 – include it as an introduction to the following law.

This is a token of respect to the scroll.

I.e., a scroll is written containing not only the five books of the Torah, but all the 24 books of the Tanach.

The Rambam’s ruling here appears to be a reversal of his previous conception of the issue. In his Commentary on the Mishnah (Bava Batra 1:6; see Rav Kapach’s translation), he states that if many book of the Tanach were written in one scroll and the partners desired to divide them, they may. This conception is also reflected in Hilchot Sefer Torah 7:15, which speaks of writing the entire Tanach in a single scroll and states that three empty lines should be left between each book, “so that if one desires to divide, he may do so.” In this halachah, by contrast, the Rambam is forbidding such a division.
The Tur and the Ramah (Choshen Mishpat 173:1) state that although one person would be allowed to make such a division, it is a mark of disrespect for the sacred writings for a scroll owned in partnership to be divided in such a manner.
When the Tanach is written in two scrolls, the Tur and the Shulchan Aruch rule that if both partners do not agree to divide the scrolls, even if one desires, they should be left intact.

See Hilchot Mechirah 5:14, which explains that when a kinyan is made concerning a general promise to perform an act, but it does not involve a specific entity, it is not binding.

In this instance, each one has chosen his portion of the property, and the kinyan has confirmed it.

The Maggid Mishneh mentions an opinion that states that it is not necessary for both partners to manifest ownership over their shares. Instead, as soon as one partner manifests ownership over his share, the other acquires his share. For in any exchange, all that is necessary is that one take possession of what is due him. See also the explanation of Sefer Me’irat Einayim 157:5.

The Maggid Mishneh states that with the word “went,” the Rambam indicates that this law applies even if the person went on his own volition, without the other partner watching him or telling him: “Go and acquire it.” The rationale is that this division of property is not a sale, and therefore the laws of transfer stated in Hilchot Mechirah 1:8 do not apply.

Even Ha’Ezel explains that the Rambam is not stating that by manifesting one’s ownership over the property, the division is completed. Instead, the intent is, as stated in Chapter 1, Halachah 1, when two partners each recognize their portion of the property, it is considered as if it has been divided. And by manifesting ownership over a portion of the property, the partners thus designate it as their own.

It appears that the Rambam considers drawing a lot as a kinyan through which one acquires the property. Rabbenu Asher, the Tur and the Ramah (Choshen Mishpat 173:2) state that drawing lots merely identifies the portion of the property each will receive, and one of the brothers must actually take possession of the property for the division to be binding.

When there are only two brothers, the intent is that once one draws the lot for his portion, the other automatically receives the other portion. When there are more than two brothers involved, the Rambam’s words require clarification. The Maggid Mishneh offers several interpretations:
a) that the portions are numbered. Once the elder brother receives his portion through the lottery, the second eldest brother receives the portion next to it, the third eldest the third portion, etc.
b) that once one of the brothers receives a portion by lot, all the other brothers are bound to divide the remainder of the property by lot.
c) that once one of the brothers receives a portion by lot, all the other brothers acquire the remaining property as a collective. One of them may, however, refuse to divide it by lot.

Sefer Me’irat Einayim 173:7 states that this ruling applies only when they divide the property without reckoning the value of each of the shares. If, however, they reckon the value of the shares, each one has the right to the privileges that grant his share value. His statement is discussed by the other commentaries on the Shulchan Aruch.

The comprehension of this halachah depends on several fundamental principles. As indicated in the following halachah, when a person acquires property from a colleague, he is ordinarily entitled to all of the rights which the previous owner had. Thus, the owners of the neighboring properties do not have the right to cut off his irrigation, block his windows, make his ladders useless or the like.
Why is this allowed in this instance? Because the brothers are considered as having purchased the property from each other, and when a person sells property to another person, he does not retain any rights to the property. (See Hilchot Mechirah 25:3.)
Bava Batra 65a entertains another possible explanation of the concept of inheritance, b’reirah – i.e., when each brother receives his share, it is considered as if from the outset the property had been divided in this manner. Thus, he would be able to retain all the rights to the amenities that existed beforehand. The Talmud, however, rejects that definition and considers the division of the property to be equivalent to a sale.

I.e., if one brother’s share of the property lies behind another brother’s share of the property, the one with the innermost share cannot demand right of passage from his brother. Instead, he must be willing to purchase that right.

I.e., one brother received the second storey of a building, and another brother received the first storey and the courtyard next to it. The brother who received the second storey cannot require the brother who received the first storey to allow him to erect a ladder to reach his loft.

The Maggid Mishneh explains that the Rambam explains this principle later, that one brother may build a structure that block off his brother’s window. That brother cannot complain, claiming that the window is necessary for him for light and it may not be blocked off.
The Kessef Mishneh also interprets the Rambam’s words in this manner. Nevertheless, he quotes opinions that maintain that if one brother complains that the other brother’s window intrudes on his privacy, the Rambam requires the brother with the window to close it.

I.e., one may close off the irrigation ditch leading to the other’s field as the Rambam proceeds to explain.

I.e., the brothers’ father.

Who were not partners (Maggid Mishneh).

Who had already divided their inheritance (ibid).

For there is no partnership involved here, and each of the buyers must respect the rights that existed previously.

I.e., even if only one of the partners desires the wall, and the other does not, the one who desires the wall may compel the other partner to participate in its construction.

I.e., there are two aspects to the building of the wall in which each partner must participate. [See Shulchan Aruch (Choshen Mishpat 157:3).]
a) he must pay an equal share of the costs of the wall; and
b) he must give an equal portion of his land on which the wall is constructed, as stated in the following halachah.

I.e., it is a significant factor over which a person is entitled to protest.

As is explained in the coming chapters, there are times when a neighbor waives his opposition to a practice performed by another neighbor. Once he makes such a waiver, he cannot retract, and it has become established that the other neighbor has the right to continue his practice.
This principle does not apply with regard to an invasion of privacy. Thus, the Rambam explains in Chapter 11, Halachah 4:
Why are these damages (including an invasion of privacy) different from all other forms of damage? Because a person is not able to bear these damages. We can assume that he never waived [his opposition to them). For the damage is constant.
The commentaries do, however, note an apparent contradiction to this concept in Chapter 7, Halachot 1-6. See the notes on those halachot.

The Ramah (Choshen Mishpat 157:1) reinforces the Rambam’s ruling, stating that even if there is a local custom not to build a partition in such a situation, we do not follow the custom, but compel the partner to join in building the partition.

See Halachah 18, which graphically outlines this principle.

The Ramah (Choshen Mishpat 157:4, based on the Hagahot Maimoniot) states that if, however, it is local custom to make a divider from a substance less sturdy than reeds or palm leaves, that custom need not be followed.

In this manner, a person of ordinary height will not be able to see over the wall.

This ruling has attracted the attention of the commentaries, for obviously a fence ten handbreadths (approximately 40 inches) high will do nothing to prevent one neighbor from seeing another. Indeed, for this reason, the Ra’avad states bluntly: “This is a mistake. The wall must be four cubits high.”
The Maggid Mishneh defends the Rambam’s ruling, explaining that the garden referred to is a vegetable garden - a workplace - and in such a place, there is no need to protect a person’s privacy. When is that necessary? In the courtyard of a person’s home, where he relaxes and performs private acts. (At that time, a person’s courtyard was often used as a lavatory.) Why then is a partition necessary in a garden? To make a distinction between one person’s property and another, so that it will be obvious if one trespasses. (See Chapter 3, Halachah 6.)
The Sages of Lunil addressed a question to the Rambam, noting that from Bava Batra 2b, it appears that the need for privacy applies also in a garden. In a responsum attributed to the Rambam, two replies are given:
a) The privacy spoken about with regard to a garden is that another person should not see the person’s crops growing, become jealous and cast an evil eye upon them. For this, a partition of ten handbreadths is sufficient.
b) That in truth there is no concept of a need for privacy in a vegetable garden. The only reason a partition is necessary is to safeguard against trespassing. The passage in Bava Batra does not reflect the halachah.
The commentaries also note that with regard to a courtyard, the Talmud uses the terms kotel or mechitzah, which generally refer to partitions four cubits high. With regard to a garden, by contrast, the Talmud uses the expression gadder, which refers to a partition ten handbreadths high.
With regard to this law, the Shulchan Aruch (Choshen Mishpat 158:3) quotes the Rambam’s opinion, but mentions the dissenting view as well.

In the above-mentioned responsa, this law is used as a proof that there is no concept of the need for privacy in a garden. For if so, why would there not be a similar need for privacy in a field?
With regard to trespassing, by contrast, there is no difficulty. In contrast to a vegetable garden, crops are not grown in a field throughout a large portion of the year. And at that time, there is no difficulty with trespassing.

Here too, the above difference of opinion between the Rambam and the others applies. According to the Rambam, a ten-handbreadth divider is all that is necessary, while according to the other views, the divider should be four cubits.

Since this wall is not considered necessary, the other partner is not obligated to take part in its construction. Instead, the partner who desired it must bear the entire burden himself.

Bava Batra 4a explains that the protrusion should be made on the outside for the following reason. If it were made on the inside, the neighbor could also build such a protrusion on his side of the wall and then claim that it is his. If, however, it has to be made on the inside, he would have to cross into his colleague’s property to build it, and that would present a difficulty.

For the wall was built on his land, with his stones. Bava Batra (Ibid.) states that even if the stones fall into the other partner’s property, he must give them up.

Indicating that the wall was built in partnership. This is preferable to leaving no sign at all. For if no sign is left, it is possible that one of the partners will build a protrusion on the wall to indicate that the wall belongs to him.
Although we consider the possibility of fraud in this instance, we do not consider the possibility that one colleague will destroy the protrusion built by his colleague, because it would be obvious that the facade of the wall had been changed.

Because they both contributed to its construction.

I.e., without telling him that it is connected to other gardens and must be divided (the Rambam’s Commentary on the Mishnah (Bava Batra 1:22)].

The Ra’avad maintains that the seller and the purchaser should build the fence together. The Maggid Mishneh explains that the Rambam’s decision echoes his ruling in Hilchot Mechirah 21:22 which states that when a person purchases a portion of a field from a colleague, it is the purchaser’s responsibility to erect a fence dividing the two portions.
The Shulchan Aruch (Choshen Mishpat 158:2) quotes the Rambam’s opinion, but prefaces it with the words: “There is an opinion, which states....” The Ramah and the Tur rule that the buyer and the seller are considered as two partners who divide a field and that they should follow the local custom.

The Maggid Mishneh questions the Rambam’s source for this ruling, and the Kessef Mishneh offers several possible interpretations. A clear understanding of the Rambam’s position can be derived from his Commentary on the Mishnah (Bava Batra 1:2). There the Rambam states that when a person buys a field from a colleague, the purchaser is obligated to build a fence to divide the two gardens, even if the seller did not specify that it would be necessary to do so when he sold the garden.

With regard to this point as well, the Shulchan Aruch (loc. cit.) quotes the Rambam, while the Ramah and the Tur state that local custom should be followed.

For generally, fences are not erected in fields (Rambam’s Commentary on the Mishnah, loc. cit.).

For the width of the entire wall is six handbreadths.

For when the stones are hewn, their length is reduced.

The bricks are three handbreadths long, as reflected in the following clause. Nevertheless, since they are broken, each of the neighbors must give another half handbreadth for the extra mortar in between.

If, however, the stones are not seen, we accept that colleague’s claim, based on the principle of migo. Had he desired to lie, he could have claimed that he already returned the stones to his colleague (Maggid Mishneh).

By bringing witnesses who support him.