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Bava Basra, 59
BAVA BASRA 59 (7 Sivan) - L'Iluy Nishmas Mrs. Grune Fradl bas ha'Rav Shmuel
David Levinson (who passed away on 7 Sivan 5753), a true 'Isha Yir'as
Hashem.' Dedicated by her son.
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1) A WINDOW OPENING INTO A NEIGHBOR'S PROPERTY
QUESTION: Rebbi Zeira states that a person is permitted to make a window in
his wall that faces his neighbor's Chatzer, if he builds the window more
than four Amos high, since he cannot peer out of it and cause Hezek Re'iyah
to his neighbor. The Gemara says that even if the owner of the Chatzer wants
to stop the owner of the house from building the window, he is not entitled
to do so, because of the principle of "Kofin Al Midas Sedom" -- which
literally means that we force a person not to act in the way that the people
of Sedom acted. Since the owner of the Chatzer is not losing anything by his
neighbor having a window there, he cannot stop his neighbor from building a
window. Rebbi Ila'a argues and says that the owner of the Chatzer *is*
entitled to stop the owner of the house from making the window. The Gemara
initially assumes that the reason Rebbi Ila'a maintains that the owner of
the Chatzer may prevent his neighbor from building the window is because he
holds "Ein Kofin Al Midas Sedom" -- we cannot force a person to allow others
to benefit when he is not losing anything as a result.
What does the window in the wall have to do with Midas Sedom? Midas Sedom
applies to a situation in which others are benefiting from one person's
property in a way that the owner of the property does not lose anything. In
such a case it is possible that the owner may be entitled to stop the others
from deriving benefit from his property, even though it is not proper for
him to do so. In contrast, in the case of the window, the person who makes
the window is not deriving any benefit from the property of the owner of the
Chatzer! Why should the owner of the Chatzer be able to stop him from making
the window, even if we rule "Ein Kofin Al Midos Sedom?" (KETZOS HA'CHOSHEN
154:1)
ANSWER: The KETZOS HA'CHOSHEN and REBBI AKIVA EIGER (Teshuvos 1:141) answer
that the Gemara views the airspace of the Chatzer as the property of the
owner of the Chatzer. If a person uses that airspace by looking out of a
window through the Chatzer, or by receiving the air or light that comes
through the Chatzer, it is considered a use of the Chatzer itself. This
reasoning is expressed by the RASHBA earlier (17b).
RAV SHACH zt'l in AVI EZRI (Hilchos Shechenim 3:3) and the BIRKAS AVRAHAM
ask how can airspace be considered to be *owned* by the owner of the
Chatzer? If the air blows through the Chatzer, we do not find that it
becomes the property of the owner of the Chatzer! We certainly do not say
that when air blows through the Chatzer into the window of the owner of the
adjacent house, or when the light shines through the Chatzer into the
window, that the air or light becomes the possession of the owner of the
Chatzer!
Perhaps the Rashba and the Acharonim mean that deriving benefit from the
fact that the Chatzer has open space is considered a usage of the Chatzer,
since this is the purpose for which the Chatzer was built. A person who did
not build a Chatzer should not be able to derive benefit from the Chatzer
that his neighbor built without receiving permission from the owner of the
Chatzer, if not for the rule of "Kofin Al Midos Sedom." That is why the
Gemara needs the principle of "Kofin Al Midos Sedom" in order to permit it.
59b
2) THE TIME NEEDED FOR MAKING A CHAZAKAH ON THE USAGE OF SOMEONE'S PROPERTY
OPINIONS: The Beraisa discusses a case in which a person builds windows into
his wall that open into the Chatzer of his neighbor. Rebbi Yishmael rules
that the owner of the windows has a Chazakah if his neighbor is silent and
does not protest immediately. Rebbi Chiya argues and says that a person
cannot make a Chazakah by doing an act that could inconvenience someone
else, even if the other person does not protest immediately. The RASHBAM
explains that Rebbi Chiya requires a Chazakah of three years in order to
support the claim of the Machzik that he received permission to do what he
is doing.
The Halachah follows the view of Rebbi Chiya. It seems from here that just
as a Chazakah that proves the ownership of property requires three years of
occupancy on the property, so, too, a Chazakah for *using* another person's
property requires three years of usage. However, the Gemara earlier (6b)
teaches that if a person rests his beams on his neighbor's wall for thirty
days, he has made a Chazakah for using his neighbor's wall in such a way.
The Gemara there continues and says that if the beams are supporting the
Sechach of his Sukah, then even after seven days he has a Chazakah. This
implies that it is not necessary to have three years of usage in order to
make a Chazakah! What is the difference between these Halachos?
(a) Although the RASHBAM here requires three years in order to make this
Chazakah, earlier (6a) the Rashbam writes in a Hagahah in Rashi that the
Chazakah for using another person's property takes effect immediately. The
TUR (CM 153) explains that the Rashbam holds that when giving permission to
someone to use one's property for small forms of usage, it is not the
practice to write a Shtar. Therefore, the Chazakah takes effect immediately
if the owner does not protest, and the person using the property is believed
to claim that he bought the rights to use the property for that purpose. In
contrast, it *is* the practice to write a Shtar for *large* forms of usage,
such as those mentioned in our Mishnah. Therefore, the Machzik can only
claim that he bought the rights to that usage after he has used the property
for three years, because within three years, the owner can demand to see the
Shtar (see also Insights to 57a).
(b) The BA'AL HA'ME'OR maintains that three years are required to make any
type of Chazakah, even a Chazakah of usage of another person's property. He
explains that the Gemara earlier (6b) means that a person must use the
property for thirty days *in addition* to three years.
Alternatively, the Gemara there is not discussing an actual Chazakah, but
rather it is discussing the question of when the usage of a wall is
considered proof that a person paid his share in building the wall, as
RABEINU TAM explains (cited by Tosfos 6b, DH Hai). This is also the opinion
of TOSFOS earlier (23a, DH v'Ha) and the ROSH there. (The RIVAM cited by
Tosfos adds that it is not necessary to present any claim after using a
person's property for three years. The other Rishonim, though, do not accept
this opinion, and they require that the person present a claim (for example,
that he bought the rights to use the property, or that the owner was Mochel
to him the usage of the property).)
(c) The GE'ONIM cited by the RAMBAN (Milchamos, 6a, and in Chidushei
ha'Ramban, 57a and 59b) explain that the Chazakah for using someone else's
property does not require three years (as the Gemara earlier (6b) implies).
Even though Rebbi Chiya rules that the Chazakah is not immediate, he does
not say that three years are necessary. Rather, as soon as the usage has
been continued long enough that it would be expected for the owner to
protest, the Machzik has made a Chazakah. In the case of the beam (6b),
using the neighbor's wall for thirty days proves that he has permission to
use the wall.
The Ge'onim add that it is not necessary to present a claim of purchase or
Mechilah, in contrast to the opinion of the Rashbam. According to the
Ge'onim, the Chazakah of usage is inherently different from a Chazakah of
ownership. People are more apt to be Mochel usage of their object than to be
Mochel ownership of their object. The Chazakah required to *use* a person's
object is necessary to prove that since the owner did not complain, he
presumably was Mochel. Therefore, it is not expected for the Machzik to have
a Shtar, and he does not need three years for his Chazakah.
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