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1) HOW THE RENTER TAKES OVER THE OWNER'S HOUSE

(a) Question #1 (R. Aba bar Mamal): When Shimon lives below, is he alone?

1. Or, may Reuven dwell with him, for he never agreed to be expelled from his own house!

(b) Question #2: If Reuven dwells with him, does Shimon enter normally, or must he enter (his attic as he used to, via a ladder, and then) down a ladder from his attic?

1. Is Shimon required to live as he used to, climbing up to his roof?
2. Or, can he say, I only consented to climb to enter my house, not to descend as well!

(c) Question #3: If Shimon can say, I never consented to climb and descend - what if there were two upper stories on top of the house?

1. Obviously, if the top story sinks, Shimon must accept the middle story, it is less climbing.
2. If the middle story sinks, must Shimon accept the top story?

i. Can Reuven say, you consented to climb to enter your house, you must merely climb more!
ii. Or, can Shimon say, I only consented to climb one story, not two!

(d) These questions are not resolved. (Rambam - the last question is not resolved, the first questions are resolved as supposed in the following question).

(a) (Mishnah): R. Yosi says, Reuven must supply the ceiling...
(b) Question: What is meant by 'the ceiling'?
(c) Answer #1 (R. Yosi b'Rebbi Chanina): Wicker mats.
(d) Answer #2 (Stini): Cedar boards.

1. They do not argue, each says what is standard in his region.

(e) Reuven lived in a house and Shimon lived in its attic. The plaster (of the attic floor) came off; when Shimon would wash his hands, the water would drip into the house.
(f) (R. Chiya bar Aba): Shimon must fix it.
(g) (R. Ila'i): Reuven must fix it.
(h) Suggestion: R. Chiya bar Aba and R. Ila'i argue as R. Yosi and Chachamim argue.

1. R. Chiya bar Aba says that the upper dweller must fix it (like R. Yosi, who obligates him to supply the plaster) because the damager must distance himself from damaging;
2. R. Ila'i says that the lower dweller must fix it (like Chachamim) because the damagee must distance himself from being damaged.

(i) Objection: R. Yosi and Chachamim hold just the contrary!

1. We distance a tree 25 Amos from a pit; a carob or sycamore tree must be distanced 50 Amos;

i. This applies in all cases, whether the tree is above, below or even with the pit.

2. If the pit was there first, the tree must be cut, the owner of the pit must pay;
3. If the tree was there first, the tree is not cut.
4. R. Yosi says, even if the pit was there first we do not cut the tree;

i. Just as one may dig in his own property, one may plant in his own property!

5. This shows that R. Yosi obligates the damagee to distance himself, Chachamim obligate the damager to distance himself!

(j) Rather, we can say that R. Chiya bar Aba and R. Ila'i argue as R. Yosi and Chachamim argue in that Mishnah;

1. R. Chiya bar Aba obligates the damager to distance himself, like Chachamim;
2. R. Ila'I obligates the damagee to distance himself, like R. Yosi.

(k) Question: What do R. Yosi and Chachamim argue about in our Mishnah?
(l) Answer: Whether plaster is needed to support the ceiling. (Reuven is not bothered by dripping water, rather Shimon is concerned about the sturdiness of his floor.)

1. Chachamim hold that plaster is needed to support the ceiling, therefore Reuven must supply it;
2. R. Yosi holds that pegs suffice to support the ceiling, plaster is only to make it smooth, therefore Shimon must supply it (if he wants).

(m) Question: But Rav Ashi taught, R. Yosi admits that the damager may not send arrows (precipitate damage directly - why does R. Ila'i exempt Shimon)?
(n) Answer: The case is, the water does not fall straight down, this is not considered arrows.

(a) (Mishnah): Reuven owns a house, Shimon owns the upper story; the house fell. Shimon wants to rebuild the house; Reuven refuses. Shimon may build the house and live there; Reuven may not live there until he shares the expenses;
(b) R. Yehudah says, if Shimon lives there, he must pay rent to Reuven;

1. Rather, Shimon builds the house and also the upper story, then Shimon may live in the house until Reuven shares the expenses (since Shimon could live in the attic, he is not benefiting from the house).

(c) (Gemara - R. Yochanan): R. Yehudah teaches that it is forbidden to benefit from another's money (against his will, even if he does not lose) in our Mishnah and in two other Mishnayos:

1. (Mishnah - R. Meir): If Reuven asked Shimon to dye wool red, and he died it black, or vice-versa - R. Meir says, Shimon pays the value of the wool he received;
2. R. Yehudah says, Reuven pays the increased value or Shimon's expenses, whichever is smaller.
3. (Mishnah - R. Yosi): Reuven paid part of his debt to Shimon. He fixed a date and gave the document to Levi saying: 'If I do not pay the rest by this date, give the document to Shimon (who may then collect the full amount).' Reuven did not pay in time - Levi gives the document to Shimon;
4. R. Yehudah says, he does not give it.

(d) Rejection: Perhaps R. Yehudah forbids in our Mishnah because living in a house blackens the walls (causing a loss)!

1. Perhaps he makes the dyer return the wool because he deviated;

i. (Mishnah): Anyone who deviates has the lower hand.

2. Perhaps he says that Levi does not give the document to Shimon because this was Asmachta, and we know that R. Yehudah holds that a condition of Asmachta is invalid!

(a) (Rav Acha bar Ada): If the wall was originally cut stones, and Reuven (the bottom dweller) wants to rebuild (the part incumbent on him, i.e. up to the ceiling) from uncut stones, he may (he must make it a Tefach thicker, in accordance with the first Mishnah of Bava Basra, for then it is stronger);

1. If it was originally uncut stones, he may not rebuild it (thinner) from cut stones;
2. If it was originally bricks, he may rebuild it (thicker) from half-bricks; if it was originally half-bricks, he may not rebuild it (thinner) from bricks.
3. If he wants to use cedar wood for the ceiling (in place of sycamore, which is lighter and weaker), he may, but not vice-versa;
4. He may rebuild it with less windows than originally, but not with more (this weakens the wall);
5. He may rebuild it lower than originally, but not higher (this is less stable, and also extra exertion for Shimon to get to his attic);

(b) Question: What if neither can afford to rebuild it, and the owner of the land wants to sell the land?
(c) Answer (Beraisa - R. Noson): Reuven gets two thirds of the money, Shimon gets one third;
(d) Others say, Reuven gets three quarters of the money, Shimon gets one quarter.
(e) (Rabah): The Halachah follows R. Noson - he was the Av Beis Din, he delved to the heart of the law.

1. An attic decreases the longevity of a house by a third, therefore we considered the attic's owner to own a third of the house and therefore a third of the land.

(a) (Mishnah): The same applies if Shimon owned a garden on top of Reuven's olivepress built in a rock, and the garden sank: Shimon may plant below until Reuven builds a support for the garden floor.
(b) If Levi's tree or wall fell into the public domain and damaged, he is exempt;

1. If Beis Din gave him time to cut the tree or destroy the wall and they fell within the time, he is exempt; if they fell after the time, he is liable.

(c) Reuven's wall was next to Shimon's garden; it fell. If Shimon tells him to clear away the rocks, he must do so, he cannot say 'They are yours (now, clear them yourself)'.

1. If Shimon agreed to take them, Reuven cannot later say 'I will pay your expenditures and take them back'.