Shechenim - Chapter 9

In this halachah, the Rambam focuses on the damage that may be caused by the water contained in the cistern. Nevertheless, the actual digging of the cistern may also damage a wall standing next to it, and appropriate precautions must be taken, as explained in Halachah 10.

The latter two terms also refer to types of cisterns. A “trench” refers to a rectangular cistern that is not deep. A “storage vat” refers to a square cistern that is usually decked with a permanent covering.

In his Commentary on the Mishnah (Bava Batra 2:1), the Rambam explains that one might think there is an advantage to a pool for soaking clothes over an irrigation ditch, because there is not always water in the pool, while water is kept in the irrigation ditch on a constant basis. Conversely, one might think that there is an advantage to an irrigation ditch, for there the water is flowing, while in a laundry pool the water remains stationary. Hence, it is necessary to mention both situations.

As the Rambam states in his Commentary on the Mishnah (loc. cit.), laundresses would leave clothes soaking in a vat with various detergents to remove any filth.

This is necessary as a precaution.

See Chapter 10. Halachah 5, where the Rambam states that when a person makes a vat to soak flax near a vegetable garden belonging to a colleague, he must distance his vat by three handbreadths from his colleague’s property. Otherwise, it is as if he damaged his colleague’s property with his own force. Once he makes this separation, any damage that takes place is not his responsibility. In the instance mentioned in our halachah, we must assume that the likelihood of water seeping through the ground and damaging the wall is much greater. Hence, in addition to making the separation of three handbreadths, he must line the wall of the reservoir with cement. (See also the gloss of the Kessef Mishneh on Halachah 10.)

I.e., the remnants of olives after they were pressed for oil.

Our translation follows the standard printed text of the Mishneh Torah. Nevertheless, it is likely that the text is in error and the proper version should be “manure.” This indeed is the text in Bava Batra 2:1 – the source for this halachah – in the Shulchan Aruch (Choshen Mishpat 155:4), as well as in several authoritative manuscripts of the Mishneh Torah.

Our translation is based on the gloss of the Maggid Mishneh, which explains that these stones can cause damage to an adjacent wall.

For these substances can damage the wall, because they generate heat (Sefer Me’irat Einayim 155:16). Nevertheless, the possibility of damage is not as great as exists with regard to water. Hence, only one of the two precautionary measures, making a separation or cement, is required.

I.e., even plants that do not rely on an irrigation ditch (Rambam’s Commentary on the Mishnah, Bava Batra 2:1).
The rationale for this precaution is that plants weaken the structure of the soil and make it more difficult for it to support a wall (Sefer Me’irat Einayim 155:19).

Even plowing for trees (Ibid.). Plowing also weakens the land’s ability to support the wall.

See Halachah 6. It can be explained that in this halachah, the Rambam is speaking about distancing oneself even from a wall of marble. Hence, since we are speaking about a cesspool, and not just urinating once, precautions are necessary.
The Maggid Mishneh questions why a wall is not necessary in this instance, as it is necessary with regard to a pool used to launder clothes. He explains that the laundry pool is used more frequently than a cesspool. Hence, stricter measures are necessary. Note the Ramah (Choslren Mishpat 155:5), who requires that the cesspool be lined with cement.

For the lower millstone is larger than the upper millstone.

I.e., we are afraid that the grinding of the mill will rock the ground and weaken the wall’s foundation (Bava Batra 20b).

Bava Batra 20b states “because of the noise.” Others interpret that to mean that over the course of time, the sound waves may impair the wall’s strength. Indeed, this interpretation is reflected in the Rambam’s own Commentary on the Mishnah (Bava Batra 2:1).
The Ramah (Choshen Mishpat 155:7) states that this applies only to mills that are operated by hand. If, however, the mills are turned by animals, a greater distance must be made between the mill and the wall, because of the damage that might be caused.

For in Talmudic times, the bases of the ovens were wide - to hold the fuel - and their tops narrower (Maggid Mishneh).

And the heat will weaken the wall’s stability.

For the urine will cause the wall to rot.

For it will suffer greater damage from urine than a stone wall.

Where there will be less penetration.

The Maggid Mishneh emphasizes that the Rambam appears to maintain that this is the only instance where a distinction is made between a stone wall and a brick wall. There are, however, other opinions, which maintain that this distinction is made with regard to all – or many – of the factors mentioned above. See Shulchan Aruch (Choshen Mishpat 155:9) and commentaries.

It would appear that even for such a wall, separation would have to be made between a cesspool and the wall (Sefer Me’irat Einayim 155:22). The Tur (Choshen Mishpat 155), however, differs and maintains that the Rambam would allow even a cesspool immediately next to a marble wall.

When a person is setting a ladder down to enable him to climb over a wall to reach his own property from that of a colleague, he must be careful not to place the ladder within four cubits of his colleague’s dovecote.

A small carnivorous animal.
By mentioning “when the ladder is placed down,” the Rambam implies that the person is liable only if the marten jumps from it directly after he placed it down. If he leaves the ladder there and the marten jumps afterwards, his deed is not considered as a direct cause of the damage.

I.e., clear it of the dirt, sticks, and stones that collect there.

The Maggid Mishneh notes that in Chapter 8, Halachah 5, the Rambam writes that a person can build under a drainpipe belonging to a colleague, seemingly contradicting the principle reflected in this halachah. The Maggid Mishneh explains that there is not necessarily a conflict. For by building under a drainpipe one does not necessary restrict access to it. By building next to it, by contrast, one does prevent the owner from setting up a ladder.
The Tur [and his opinion is reflected in the ruling of the Ramah (Choshen Mishpat 155:17)] differs and maintains that the fact that a person has a right to maintain a drainpipe does not grant him the right to prevent his colleague from building there, unless he actually purchases that privilege.

The Rambam states “as a Gam,” referring to the Greek letter gamma written in an inverted L-shape. One might ask: Since the Rambam uses a Hebrew letter in the next line, why did he not say: “As a final chaf”?
The Greek Letter Gamma
Since Reuven’s wall is placed at the side of the wall belonging to Shimon, there is no difficulty. For this does not prevent people from coming and treading on the earth near the wall (Rashi, Bava Batra 22b).

The Maggid Mishneh questions: Why is the owner of the land next to a wall required to leave an empty space of four cubits? He explains that this halachah applies in an instance where both owners purchased their land from the king of the country. Thus, when the king sold the land to Shimon, there was already a binding obligation on that land, not to cause damage to the structures on the neighboring plot. If, however, the land was not purchased in such a manner, one may build a wall next to another wall [Ramah (Choshen Mishpat 155:14)].

This applies in both a new and an old city. Since the earth surrounding the wall of a garden is not pressed down from the inside, it must certainly be pressed down from the outside (Maggid Mishneh).

A city is considered new for 50 years [Ramah (Choshen Mishpat 155:13)].

The Ra’avad comments concerning this law: “It is a nice deduction,” implying that, although there is no explicit source for the Rambam’s ruling, it is logically sound. Nevertheless, according to the text of the passage from Bava Batra possessed by the Ri Migash, the Rambam’s teacher, this concept is obvious from the Talmud itself.

In contrast to Halachah 1, which speaks about the damage that could be done from the water contained in a cistern, this halachah focuses on the possible damage caused by actually digging the cistern.

I.e., the field is located in a place of abundant rainfall, and there is no need to irrigate it employing a cistern.

For it is unlikely that his colleague will dig a cistern there.

As reflected in the Rambam’s Commentary on the Mishnah (Bava Batra 2:1), this distance is a natural consequence of building the cistern. For the wall of a cistern is three handbreadths thick. (See Hilchot Mechirah 21:12.) Thus, there must be a six-handbreadth difference between the cavities of the two cisterns.
There are, however, opinions that do not require a person to build a cement wall within his cistern. Note the Ramah (Choshen Mishpat 155:18), who discusses this issue.
The Maggid Mishneh mentions other opinions (which apparently do not accept the premise that the cistern must have a wall and), which do not require the colleague to separate by more than three handbreadths from the border line when digging his cistern. For he can tell his neighbor: “Is it not enough that you overstepped your privileges by building your own cistern at the border line? Must you also require me to move more than necessary?’’ The Shulchan Aruch (Choshen Mishpat 155:18), however, follows the Rambam’s ruling.

For it is a firm possibility that his colleague will ultimately dig a ci stern there (Rambam’s Commentary on the Mishnah, loc. cit.).

This precaution will preserve the six-handbreadth distance between the two cisterns.

Sefer Me’irat Einayim 155:1 states that this applies regardless of whether the opening of the oven is pointed to the side or upwards.

Lest the fire coming from the oven burn the ceiling. We assume that the four cubits of open space will minimize the possibilities of danger.
The Shulchan Aruch (Choshen Mishpat 155:1) rules that every person must leave a similar space between his oven and his ceiling even if no one is dwelling in the second storey, lest his roof take fire and burn down his neighbors’ homes.

For support, lest the weight of the oven cause the ceiling to collapse.

Which is a smaller structure.

Which is larger than an ordinary oven.

Sefer Me’irat Einayim 155:2 states that when the owner of the lower storey builds any of these structures, he must leave a separation of four cubits between the top of the structure and the ceiling.

See Hilchot Nizkei Mammon, Chapter 14.
The commentaries question this ruling, noting that in Halachah 2 of the chapter cited, the Rambam rules that if the person takes the necessary precautions, he is not liable. However, they make a distinction, explaining that lighting a fire outside is not a usual activity. Therefore, if the person took the necessary precautions, but the wind nevertheless carried the fire beyond the person’s property, this is considered a loss beyond his control. With regard to a fire in one’s oven, since this is an ordinary happening, one should supervise it carefully and bear responsibility if a fire occurs (Siftei Cohen 155:2).

This is the rationale for all the prohibitions mentioned in this clause. Although, as will be explained, a barn also has other undesirable factors, e.g., its odor, the Rambam focuses on the drawback that is common to all the points mentioned.

Bava Batra 20b explains that the wine of Eretz Yisrael is stronger than the wines of Babylonia. Therefore, heat will improve its flavor, rather than spoil it. In his Commentary on the Mishnah (Bava Batra 2:3), the Rambam states that this applied in Eretz Yisrael in the era of the Mishnah, but not necessarily at other times and in other places. The laws stated here should be understood as principles to be applied to the particular circumstances that pertain in any given time or place.

For the unpleasant odor of the barn will become attached to the wine. Similarly, if any other factor caused by his activity will spoil the wine, he may not perform that activity. [See Ramah (Choshen Mishpat 155:2).]

For once a person has established the right to perform an activity, even though it may be deemed undesirable, we cannot prevent him from continuing.

To prevent the dust from rising.

As is necessary for a warehouse.

I.e., types of produce that will not be damaged by heat (Sefer Me’irat Einayim 155:10).

Which would be damaged by heat.

I.e., it is his intent to say that the loft will absorb the heat caused by the oven before it reaches the second storey (Sefer Me’irat Einayim 155:11). Note that Rashi (Bava Batra 20b) offers a different interpretation of this clause.

All these situations represent unresolved questions raised by Bava Batra 20b. Accordingly, we rule that because of this lack of clarity, the status quo should be preserved and the owner of the store should be prevented from building the oven.

Since the Talmud did not resolve the doubt concerning these situations, once the owner of the store built his oven, the status quo is in his favor. For the owner of the warehouse has no definite proof that the law supports his position.