Shechenim - Chapter 3

These points are obvious from the Rambam’s rulings in the previous chapter, Halachot 14 and 16.

For four cubits is sufficient to prevent one colleague from looking at the other in his private domain.
The Kessef Mishneh [quoting from another version of the text] states that this applies even if the wall was originally higher than four cubits. A partner can refuse to rebuild the wall to its original height.

The colleague who builds the wall must take full financial responsibility for his initiative. If the other partner does not desire the added height of the wall, he cannot require him to share in its costs. Needless to say, both partners must share in the initial four cubits of the wall, as stated above.
From the Rambam’s words, it would appear that either colleague has the right to take the initiative and build the wall to whatever height he desires. [In his Commentary on the Mishnah, Bava Batra 1:4, the Rambam states this explicitly.] With regard to this issue, the Shulchan Aruch (Choshen Mishpat 157:9) quotes two opinions. The first states that if the other partner protests and claims that by building the wall higher the builder will prevent the other from using the wall, he can hinder him from building it, if that is the local custom. The second maintains that although the other partner cannot prevent the builder from building, the builder must reimburse him for any loss he suffers if he lodges a protest.

I.e., in addition to his share in the original four cubits, he must pay half the costs of the next two cubits. For his actions indicate that he desired that the wall be built at least six cubits high.

Had he not so desired, he would not have built his own wall six cubits high.

By using the addition his colleague made for his own purposes.

This applies even if we know that the plaintiff was the only one who took part in the actual construction of the wall, and even if there are witnesses that the plaintiff asked the defendant to help, and the defendant refused [Shulchan Aruch (Choshen Mishpat 157:8)].
In his Commentary on the Mishnah (Bava Batra 1:4), the Rambam explains the rationale for this ruling: Since it is well-known that he is liable for this obligation, we assume that he paid.

A less severe rabbinic oath, which is required of anyone who denies entirely a claim issued against him.

The Shulchan Aruch (op. cit.) explains what type of proof the plaintiff could bring:
a) that witnesses were with him for the entire time from the moment he began the construction until the present, and they did not see the defendant pay him;
b) that witnesses will testify that the plaintiff sued the defendant to require him to help in the construction of the wall; although the court obligated him to do so, he refused.

In the above source, the Rambam explains the rationale for this decision: Since the defendant was not obligated to pay his share for the wall until he showed that he desired its construction, and the plaintiff had not demanded payment beforehand, we tell the defendant: “How could you have paid him when you do not know that you are obligated to pay?”

The oath is required because there is still the possibility that the defendant paid; there is no chazakah that he did not. The commentaries question why this oath is not mentioned in Hilchot Sh’vuot, Chapter 7, among the Rambam’s listing of those who are required to take an oath holding a sacred object before expropriating their due.
Note the Tur and the Sefer Me’irat Einayim 157:31, who quote opinions of Rishonim who do not require an oath.

I.e., in the midst of repairing the walls of his own ruins, he builds walls that are functional for the other owner.

I.e., even if the other colleague encloses this portion. Certainly, this applies if the owner encloses the fourth side, as stated in the following halachah.

For all that is necessary is a divider of four cubits, as stated above.

The Vilna Gaon asks: Why should we make the owner of the enclosed ruin pay for the enclosure? He did not commission it, nor did he give any indication that he desires it?
He explains that the situation can be compared to that of a person who plants a field belonging to a colleague without his permission. In such a situation, the Rambam rules (Hilchot Gezelah Va’Avedah 10:4) that the person who plants is given the market value for his work. Similarly, in this instance, he should be given the market value for the wall.
This ruling depends on the conception that although the owner has not stated that he wants to enclose his ruin, it is taken for granted that it is to his benefit that he do so. Note, however, Hilchot Gezelah Va’Avedah 10:9, which states that one should not necessarily assume that a person would desire to have his ruin rebuilt.

For only then does the owner of the enclosed ruin become a part-owner of the wall.

This expression indicates a conclusion for which the Rambam has no explicit source in the Talmud or other Rabbinic writings.

The Ra’avad differs with the Rambam concerning this point, maintaining that, on the contrary, the owner of the enclosed ruin is gaining more in such an instance. He should be allowed to use the wall and should give the builder of the wall a legal document acknowledging that the space for the wall belongs entirely to him.
From the gloss of the Maggid Mishneh, it appears that the Rambam’s opinion is that if both partners desire, an arrangement similar to that suggested by the Ra’avad can be worked out, but neither is obligated to consent to it.

The commentaries note that in the original Hebrew, the subject haketalim, employs a plural form, but the verb hayah is in the singular. Even Ha’Ezel suggests that the text should read “the place of the walls.”

The Maggid Mishneh and the Kessef Mishneh maintain that this applies only if the owner of the enclosed ruin encloses the fourth side with a wall similar to that built by the other person. If, however, he builds the fourth wall with a less sturdy structure, he is not required to pay half the costs of the other three sides. Instead, he is merely required to pay half of what it would cost to enclose those three sides in the same manner as he enclosed the fourth. This understanding is reflected in the ruling of the Shulchan Aruch (Choshen Mishpat 158:7).

Although the Rambam - and similarly our translation - employs the term guard rail, it would appear that the intent is merely to borrow the Biblical term (Deuteronomy 22:8). Every roof must have a guard rail to protect people from falling (see Hilchot Rotzeach USh’mirat HaNefesh, Chapter 11), but that guard rail does not have to prevent someone from seeing onto - or from - the roof. This halachah speaks about constructing a divider on the roof, not for the purpose of safety, but for the purpose of privacy.

I.e., the roofs are horizontal and not slanted, so that a person could stand there.

Four cubits high.

I.e., neither is required to erect a partition for the entire length of the roof. Instead, each one should erect a partition for slightly more than half. See the accompanying diagram.
The Construction of Guardrails on Roofs Which Face Each Other
a) one home
b) a second home
c) the public domain
d) a guardrail extending more than half the length of the roof
e) a guardrail extending more than half the length of the roof

And therefore, he may protest to his colleague: “Why must I build a partition so that I don’t see you; the people in the public domain can always see you?”

Since the distance between the roofs is not that far, one can see even at night. The darkness would prevent people in the public thoroughfare, by contrast, from seeing.

We are speaking about properties situated on an incline, and so the courtyard is the same height as the other person’s roof. The properties need not be next to each other. Instead, as reflected in the previous halachah, if they are close to each other and on the same level, there is a question of the invasion of privacy, and a divider is required (Sefer Me’irat Einayim 159:7).
A House Built on a Slope Whose Roof Is on the Same Level as An Adjoining Courtyard
a) the house b) the partition c) the courtyard

The Shulchan Aruch (Choshen Mishpat 160:1) explains that the owner of the roof is considered to be damaging his colleague, the owner of the courtyard, by invading his privacy. Therefore, he is responsible to eliminate that damage by constructing a wall.
The owner of the courtyard, by contrast, is not considered to be invading the privacy of the owner of the roof. The Beit Yosef (Choshen Mishpat 159, 160) explains this point as follows. It is taken for granted that the owner of a courtyard will be constantly using his courtyard, while the owner of a roof - even a flat roof that is fit to be used - will use it only from time to time. Thus, the owner of the roof will always consider that the owner of the courtyard is possibly watching him and will take whatever precautions necessary. The owner of the courtyard cannot take such precautions, because he does not know when the owner of the roof will be there. Hence, the owner of the roof must take precautions so that he does not invade the privacy of the owner of the courtyard. The owner of the courtyard, by contrast, does not have any responsibilities to the owner of the roof.
The commentaries explain that according to the Rambam, the owner of the courtyard is not responsible for paying anything for the construction of the wall. For the responsibility to remove the invasion of privacy is solely that of the owner of the roof. The Maggid Mishneh and the Shulchan Aruch (op. cit.), however, state that the owner of the courtyard should share in the costs of the bottom ten handbreadths of the wall. For he is also responsible for making a distinction between the properties, as reflected in the latter clause of this halachah.

As reflected in the continuation of the Rambam’s words, and as emphasized by the Ra’avad, this refers to slanted roofs, which are not fit for use.

Each one is considered as having invaded the privacy of the other.

I.e., he claims that he need not suffer because his colleague’s courtyard is lower.

The Maggid Mishneh explains this ruling as follows: Since the wall must be built on the land belonging to both neighbors, and the land belonging to one is lower than that of the other, the owner of the upper courtyard must contribute to the cost of building the half of the wall that must begin in the property of the owner of the lower courtyard.
Afterwards, the owner of the lower courtyard must continue to share in the cost of the wall until he cannot see the owner of the upper courtyard from below. If, however, the owner of the lower courtyard has difficulty seeing the owner of the upper courtyard because of the difference in height, it is necessary only to build a small partition.

For, as explained in the notes on the previous halachah, it is not considered as if the owner of the courtyard invades the privacy of the owner of the roof at all. Instead, the owner of the roof must build a wall on his roof that extends four cubits above the ground of the courtyard. (According to the Rambam, it is not necessary for the owner of the courtyard to contribute to the building at all. According to the other opinions mentioned above, he must contribute towards the building of a divider ten handbreadths high.)
[This reflects one opinion in the Shulchan Aruch (Choshen Mishpat 160:1). A second opinion is that if the roof is four cubits or more below the courtyard, it is not necessary to build a divider.]

Perhaps the example of a garden was chosen because according to law, all that is necessary in a garden is a divider that is ten handbreadths high (Chapter 2, Halachah 16). If one of the neighbors desires to build a more substantial structure, he must build it at his own initiative and expense.

For they present an obstruction to his neighbor’s garden.

I.e., you may keep the stones, but you must remove them.

For a person cannot compel another to acquire any property.

The Maggid Mishneh cites a question asked by the commentaries: Since a person acquires an article placed in his domain by virtue of its presence there, why is it necessary for the person to remove them in order to acquire them? Seemingly, his consent alone should be sufficient.
The commentaries explain that a person’s courtyard can acquire an article placed there when the person placing it there desires to transfer ownership of it. In this instance, we do not suspect that the owner of the wall genuinely desired to transfer ownership of his stones. Instead, we assume that he was merely procrastinating.
In that vein, the Rashba states that it is only when the owner of the garden removes the stones in the presence of their owner that he acquires them. When he sees him taking his stones and does not protest, we assume that he genuinely desires to relinquish ownership. Otherwise, we have no proof of that. Nevertheless, Sefer Me’irat Einayim 166:2 does not accept that argument and maintains that even when the owner of the garden moved them without the owner of the wall watching, the owner of the wall is considered to have consented.

The one closest to the spring.
The rationale is obvious. If the first owner cannot take water from the spring, none of the others will be able to take water either.

The owners of the higher gardens are not concerned with the water once it passes through their property. They do not derive any advantage if the owners of the lower properties have water. Therefore, they are not required to participate in their costs.

For rain water or for sewage.

Here too, the rationale is obvious, if the drain is not useful for the lowest property, none of the higher properties will be able to use it either.

For the inhabitants of the lower properties do not derive any benefit from the drain in the higher properties. Indeed, if anything the fact that the water from the higher property drains through their property is a nuisance.

The commentaries explain that this, like the ruling in the final clause of the halachah, was instituted as an expression of “the ways of peace.”

This ruling, a translation of the Talmudic expression kol d’alim g’var, is rendered because there are two opinions regarding this law in the Talmud (Gittin 60b), and the Talmud does not reach a binding conclusion. Therefore, the situation is left to every set of neighbors to settle on their own.
There is a difference of opinion with regard to the meaning of the phrase kol d’alim g’var. Some interpret it as meaning: “Whosoever’s claim appears stronger.” Others - and this appears to be the interpretation in this instance - state that it means simply: “Whoever is stronger than his colleague and can enforce his position.”

The Tur and the Ramah (Choshen Mishpat 170:2) state that this refer to a cistern that existed before the irrigation ditch, and the irrigation ditch flows directly over it. Otherwise, since the owner of the cistern is obstructing the natural flow of the irrigation ditch, the principle of “who overcome, prevails,” would seem to apply.
Sefer Me’irat Einayim 170:3 emphasizes that the Rambam does not share that conception, and seemingly neither does the Shulchan Aruch, which quotes the Rambam’s ruling verbatim.