MISHNAH: Condominium owners [They own separate houses built facing one courtyard; they want to build a wall so that each house opens to its own courtyard.] who want to make a separation in the courtyard build the wall in the middle. At a place where commonly one builds with unhewn stones, or hewn stones, or half-bricks [This is the definition of the Babli (3a). In Hab. 2:11 the word means “wood splinter”.] , or bricks, everything follows local custom [If one of the parties wants to build following local custom, he can force the other party to agree with him.] . For unhewn stones, each partner gives three handbreadths. For hewn stones, each gives two and one half handbreadths. For half-bricks, each gives two handbreadths. For bricks, each gives one and a half handbreadths [A wall made of half-bricks is wider than one made of whole bricks since the mortar between the pieces takes up an additional half handbreadth.] . Therefore, if the wall collapsed [If a wall collapsed and it is no longer known who built it, one has to assume that it was built following these rules.] the place and the stones belong to both of them.
HALAKHAH: “Condominium owners who want to make a separation,” etc. As we have stated there [Mishnah 7.] : “One does not subdivide a courtyard unless each party has four cubits.” They said, there if the two parties do not agree [This is spelled out in Mishnah 7: one party may force the dissolution of a condominium if each party will be left with a legal minimum of space.] . But here if both parties agree [It says explicitly that “they wish to make a separation.” In that case they are not bound by minimal conditions (Babli 2b).] . And you may even say, here if the two parties do not agree [As explained in the next sentence, “they wish” means “either of them may wish”.] . If this one wishes, one forces the other; if the other one wishes, one forces this one. Rebbi Joḥanan said, one forces for courtyards; one does not force for roofs [It is assumed that the parties wish to build the wall in order to insure privacy, so that one party cannot see what the other is doing in his courtyard. The courtyards were always in the back of the houses, not visible from the street. One assumes that both buildings are one-storey houses and that the wall will be built high enough that from one flat roof the neighbor’s courtyard cannot be seen. There remains the question what is meant by “splitting because of the roof.”] . Rebbi Nasa wanted to say, in case of a courtyard which is higher than the roof [Two houses built on a hillside; the courtyard of the upper one is higher than the roof of the lower. According to R. Nasa, the owner of the lower house cannot go to court to force the owner of the upper house to build a wall which will guarantee the privacy of the lower house.] . But in case of a roof which is higher than the courtyard, one forces [As noted before, the wall must be built high enough that from one flat roof the neighbor’s courtyard cannot be seen.] . Rebbi Joḥanan wanted to say, in case of a courtyard which is higher than the roof one forces [In this case, the inhabitants cannot but see what is going on in the lower house. This violates the privacy rights of the inhabitants of the latter; the former can be forced to construct a fence which will bar them from looking down.] . But in case of a roof which is higher than the courtyard, one does not force [Since the use of the roof is infrequent, the damage done to the other party by an occasional glance is minor and does not warrant the construction of a fence. The Babli disagrees in the name of Samuel, 2b.] .
MISHNAH: Similarly for a vegetable garden [An irrigated area of intensive agriculture.] ; a place which customarily is fenced in, he must fence in [If one of the parties wishes to construct a fence the other party is forced to contribute land and money to its construction.] . But in an agricultural area [בקעה is a region of extensive agriculture.] , a place which customarily is not fenced in, one does not obligate him. But if he [One of the farmers.] wishes, he builds inside his land and makes a façade [A smooth face; the wall or fence must be covered with smooth stone plates. This characterizes the fence or wall as private property of a single owner.] to the outside; therefore if the wall collapses both land and stones are his. But if they [Two property owners in the agricultural area.] did it with mutual agreement they build the wall in the middle and make façades on both sides; therefore if the wall collapses [If a wall collapsed and it is no longer known who built it, one has to assume that it was built following these rules.] both land and stones belong to both of them.
HALAKHAH: “Similarly for a vegetable garden,” etc. It was stated: For a vegetable garden, whether it be a place where it is customary to build a fence, or a place where it is not customary to build a fence, one forces [As pointed out in the Babli, 4a, Mishnah 2 is ambiguous in the case of a place where it is not customary to fence in vegetable gardens. From the first sentence, one would infer that one would not force one farmer to participate in the costs of a fence which his neighbor wants to put up, but from the second sentence it seems that only in agricultural areas he does not have to participate. The Babli restricts the power of the court to order participation in the building of a fence to places which do not have a declared policy against erecting fences. It is possible to read this into the Yerushalmi text.] . But in an agricultural area, at a place where it is customary to build a fence one forces; where it is not customary to build a fence one does not force.
MISHNAH: Somebody’s [property] surrounded another’s on three sides. If he fenced in the first, and the second, and the third sides, one does not hold [the other] liable. Rebbi Yose said, if the latter then fenced in the fourth side, one rolls everything over to him [Since he now uses the three fences put up by the other owner for his own purposes, the latter can ask for half the cost of erecting the other three fences.] . If the wall of a courtyard collapsed, one obligates him [If one of the parties wants to rebuild, the other is forced to share the costs.] to rebuild up to four cubits. There is a presumption that he gave, unless he brings proof that he did not give [If later the party which rebuilt the wall claims that it was not paid by the other party, he is the claimant and the burden of proof is on him.] . Higher than four cubits one does not obligate him, but if he built an adjacent wall, even though he did not put on roofing, one rolls everything over to him [If only one party is in charge of rebuilding, he cannot claim reimbursement for the costs of raising the wall higher than four cubits, even if the wall which had collapsed was higher. But if the party which is not in charge then builds a wall on his own property in the full hight of the separation wall, at a right angle to it, and now has three walls, the two newly built ones and his house, which he may use to create a new roofed space, he uses the full hight of the rebuilt wall and has to pay his share for the full hight.] . There is a presumption that he did not give, unless he brings proof that he gave [If he did not pay his full share, putting the roofing on the other person’s wall would be illegal. Therefore, the rules of torts apply rather than those of civil claims. Since it is common usage that the second party pays only for the costs of building up to four cubits, the presumption is that he did not pay for his share of the part of the wall which exceeds the customary height.] .
HALAKHAH: “Somebody’s [property] surrounded another’s,” etc. Halakhah 5: “If the wall of a courtyard collapsed,” etc. Rav Ḥuna said, only at the rate he is building now [Commentary to Mishnah 4. The farmer who only built one fence has to pay to the one who built three at most half the cost of his fences if they were built like the fourth (Babli 4b). E reads בְּשַׁעַר “at the rate” instead of L’s בְּשָׁעָה “at the time”; the reading of E was translated.] . For if he built it arched [Commentary to Mishnah 5. The wall was built in the way of Roman architecture, sturdy Roman arches with a thin filling below and a flat top. This saves material but costs more in labor.] , he had to build arched. But here if it was built arched and he built it with bricks, he can collect the cost of arches, and if it should collapse, he has to rebuild it [The party which rebuilt the wall can require to be paid for the quality of the previous wall, but if it was executed with inferior material or workmanship he has to rebuild it at his own expense.] .
“Rebbi Yose said, if the latter then fenced in the fourth side, one rolls everything over to him. [While this is a quote from Mishnah 4, Rav Huna’s remark refers to Mishnah 5.] ” Rav Ḥuna said, one rolls over the length of the wall to him [Even if the new wall built by the other party who did not construct the original wall higher than four cubits starts in the middle of the wall of partition, he has to pay for the elevation of the wall of partition in its entire length. This also is Rav Huna’s opinion in the Babli 6a, opposed by the authoritative Rav Naḥman who holds that he only has to pay for that part of the wall which he uses for his own purposes.] .
So far lengthwise. What about its width? [The Mishnah refers to the case that the new wall be built at a right angle to the dividing wall; the builder then intends to put on logs which form the roof parallel to the dividing wall, between his house and his new wall. He uses the dividing wall only as back wall for his new room; the dividing wall does not carry any weight. Nevertheless, it is enough to make him responsible for half the cost of the entire dividing wall. The problem now is about a wall built parallel to the dividing wall, where the house will form the back wall of the new room to be constructed. If the owner of this piece of land pays half of the cost of the dividing wall, may he put his logs on it to form a roof over his new room?] Rebbi Nasa said, the wall of the courtyard is only made to save for him [The purpose of the wall is to create privacy, rather than to carry any weight.] . They [The members of R. Nasa’s school.] intended to say that if he wanted to make a roof, he cannot make a roof [If the wall was not built for weight-carrying from the start, no party can put any weight on it. E has an additional argument: וְחָזַר וְתַנָּה. סָמַךְ לוֹ כוֹתֶל אַחֵר אַף עַל פִּי שֶׁלֹּא נוֹתַן עָלָיו אֶת הַתִּקְרָה מְגַלְגְּלִין עָלָיו אֶת הַכֹּל. הָא אִם רָצָה לִקְרוֹת אֵינוֹ מַקְרֶה. He (R. Nasa) repeated and stated: “but if he built an adjacent wall, even though he did not put on roofing, one rolls everything over to him.” Therefore, even if he wanted to make a roof, he cannot make a roof. The inference which his students wanted to draw from his statement already follows from the text of the Mishnah. The payment required is just for the wall as is, not for any additional use.] . Rebbi Yose ben Rebbi Abun said, explain it by his beams [מָרֵישׁ is a weight-carrying beam. The person building a wall parallel to the dividing wall might put up vertical beams at the two ends of the dividing wall and use them together with his newly constructed wall to make a wooden frame on which to place the roof beams. Then he gets a room of which the dividing wall simply is a wall but carries no weight. The payment of half the cost of the dividing wall is enough to make this a legitimate construction.] .
MISHNAH: One forces him to build a porter’s lodge and a door for the courtyard [Any owner of one of the houses opening to the courtyard can take the other owners to court and have them contribute their fair share to the building and maintenance of a secure entrance to the courtyard. According to Tosephta Bava meṣi‘a 11:17, the condominium can force an absentee landlord to contribute to this but to nothing else.] . Rabban Simeon ben Gamliel says, not all courtyards are appropriate for a porter’s lodge. One forces [The town administration can force contributions from all property owners to projects concerning their common safety.] him to build a wall for the town with double doors and bolt. Rabban Simeon ben Gamliel says, not all towns [Villages usually are unwalled.] are appropriate for a wall. How long does he have to stay in a town to be like an inhabitant of the town [To be a local taxpayer.] ? Twelve months; if he bought an apartment he immediately is an inhabitant of the town.
HALAKHAH: “One forces him to build,” etc. Rebbi La said: So it is; the way of a provident person is to build himself a wall, as it is said [Prov. 10:15.] : “The wealth of the rich is the fortification of his might, etc.” It was stated [Similar, but materially different, texts are in Peah 8:7 (Notes 105–106), Tosephta Peah 4:9.] : “If he stayed there for thirty days he is like the townspeople for the charity chest, for clothing six months, for assessments [For imperial taxes imposed on the locality as a lump sum.] and penalties [Greek ζημία; cf. Peah 1:1, Note 84. These are extraordinary taxes imposed by the imperial government.] twelve months.” After all these, was twelve months said only for assessments and penalties? Rebbi Yose ben Rebbi Abun said for Passover wheat, both to take and to give [12 months are required both to be subject to the local tax to supply the needs of the local poor for Passover (Mishnah Pesaḥim 10:1) or to receive welfare support in this matter.] .
MISHNAH: One does not divide the courtyard unless there be four cubits for each one [In a common courtyard, the four cubits in front of the door of each house along its entire width are for the private use of its owner. Therefore, the 4 cubits mentioned here are measured starting at a distance of 4 cubits from the house along the entire width of the house, as stated by R. Joḥanan in the Halakhah and the Babli, 11a. According to the Babli, the four cubits are personal property only in front of the doors.] , nor the field unless there be nine qab for each one [Qab is short for bet qab, the area to be sown by one qab, 1/6 se’ah, of seed grain. The bet se’ah is defined as 2500 square cubits. Therefore, the bet qab is 416 2/3 square cubits. The rules will prevent the division of estates from resulting in plots too small to be worked on. For the majority, the minimal size of an inherited field is 3750 square cubits.] ; Rebbi Jehudah says, nine half qabbim for each one [1875 square cubits.] . Not the vegetable garden unless there be half a qab for each one [208 1/3 square cubits.] ; Rebbi Aqiba says, the area of a quarter [qab] [104 1/6 square cubits.] . Not the dining hall, nor the storage room, nor the dovecote, nor the stole, nor the bathhouse, nor the olive press unless there is one for each of them. This is the principle: Anything which is divided and retains its name one divides, otherwise one does not divide. When is that? If the two of them do not agree. However, if both of them want it, they may divide even if it is less [The rules are guidelines for the courts for the resolution of disputes; they do not restrict the ability of the parties to contract following their wishes.] . But Holy Scripture [A scroll of biblical texts.] they should not divide even if both of them want it.
HALAKHAH: “One does not divide the courtyard,” etc. Rebbi Joḥanan said, the four cubits which they mentioned are outside the four cubits of the doors. Bar Kappara stated thus: One does not subdivide a courtyard unless there be eight cubits for each party [In a common courtyard, the four cubits in front of the door of each house along its entire width are for the private use of its owner. Therefore, the 4 cubits mentioned here are measured starting at a distance of 4 cubits from the house along the entire width of the house, as stated by R. Joḥanan in the Halakhah and the Babli, 11a. According to the Babli, the four cubits are personal property only in front of the doors.] . Rebbi Joḥanan said, the four cubits which they mentioned are not acquired by him [They remain condominium property.] but they are for him to park his animal temporarily and unload his package [The co-owners of the courtyard may freely pass through these four cubits but not temporarily use the space otherwise; the owner or renter of the house may use it to load and unload animals and carriages but not as permanent storage area.] . Rebbi Jonathan asked: did they only say for him to park his animal temporarily and unload his package temporarily [Is it possible that these rights not be connected with property rights?] ? It was found stated: also the circular enclosure of a cistern has four cubits [Tosephta Bava meṣi‘a 11:15. The area around the common cistern has to be kept clear so that the dwellers in the courtyard have free access and are able to put their pails there. Both the cistern and the circular area surrounding it clearly are condominium property; there is no basis for R. Jonathan’s question.] . They said in the House of Rebbi Yannai: the chicken coop also has four cubits [In the Babli, 11b, R. Yannai disagrees.] .
[The entire paragraph is from Nedarim 5:1, Notes 16–20. The courtyard is there for entering and leaving the houses. Any other use is possible only if it does not disturb other inhabitants of the courtyard.] Rebbi Joḥanan in the name of Rebbi Banaiah. Everything the co-owners can prevent one another from doing in the courtyard except laundering because of the honor of the daughters of Israel [Babli 57b.] . Rebbi Mattaniah said, this is at a place where women do the laundering, but not at a place where men do the laundering. And what was said, except laundering because of the honor of the daughters of Israel, only that in his own four cubits he may prevent it. And what was said, everything the co-owners can prevent one another from doing in the courtyard, in the entire courtyard except in the other person’s own four cubits where he cannot prevent him. But if the place was at an incline, even in the other person’s own four cubits he can prevent him, since he may tell him: you are pouring out in your domain but it flows down into mine.
[A parallel but materially different treatment of the same subject is in ‘Erubin 7:11, 24d lines 12–16.] Rebbi Joḥanan in the name of Rebbi Eleazar ben Rebbi Simeon. If anybody does not want to participate in an ‘eruv [A major bone of contention between Sadducees and Pharisees in Second Temple times was the interpretation of Ex. 19:26: “Nobody shall leave his place on the Sabbath day.” It is agreed that this implies that one may carry things at will at “one’s place”, i. e., in one’s house, and that one may not carry in the public domain. As a matter of principle, it is agreed that a condominium space, such as a courtyard, does not qualify as “one’s place.” In pharisaic interpretation, this is only a rabbinic interpretation; it is not biblical. As a consequence, there is a rabbinic possibility to turn the courtyard into a common space by collecting contributions to symbolically prepare food for a common meal of all dwellers around the courtyard and depositing it in one of the houses. This is called “ ‘eruv (mixing) of courtyards”. The whole idea of ‘eruv is rejected by Sadducees who consider reliance on it as a breach of the biblical Sabbath prohibition. It is similarly possible to turn a dead-end alley into a common courtyard of all dwellers there by affixing either a vertical lath or an horizontal beam at the entrance to the alley and then treating the alley and all courtyards which open into it as one large courtyard where then carrying is permitted. But if even one dweller in a courtyard or a dead end alley rejects the entire idea of ‘eruv, no ‘eruv can be made. The presence of Gentiles is irrelevant for purposes of making an ‘eruv.] one enters his house and makes the ‘eruv against his will. But was it not stated: if he does not want to make an ‘eruv, if he does not refuse one enters his house and makes the ‘eruv against his will? Because he does not refuse. But not if he does refuse [One Sadducee living in a courtyard makes the ‘eruv impossible for the entire dead end alley. No Sadducees are known from after the time of the war of Bar Kokhba except Samaritans.] . But was it not stated [Tosephta Bava meṣi‘a 11:18; Babli ‘Eruvin 80a.] : “The dwellers at a dead end alley may force one another to make a lath or a beam for the dead end alley. [How can one force a rabbinic institution on Sadducees or Samaritans?] ” Rebbi Yose ben Rebbi Abun said, not that he refused [He is neither Sadducee nor Samaritan.] but out of ill-will he does not want to participate in an ‘eruv [This is a particular case of the principle that “one forces people not to behave like the people of Sodom” (Babli 12b), viz., to refuse anything which does not hurt himself but will benefit others.] .
Rav Huna said, a courtyard is divided by the number of doors [Babli 11a. According to Rashi, Rav Huna speaks about distribution of an inheritance in case the father willed a house in his compound to each child but did not specify anything about the surrounding areas. These then are distributed in proportion to the doors of the houses each child inherited. According to Maimonides (Šekhenim 2:1) condominium ownership in the courtyard is determined by the number of doors opening into it from each house.] . Rav Ḥisda said, the baraita refers to manure. It was stated as follows: “For the cooking stove one handbreadth, for manure according to doors, for the covered walkway according to people. [This text is thoroughly corrupt. The mention of the cooking stove may refer to the minimal distance of a cooking stove from a wall (Chapter 2, Note 22); but probably it does not correspond to anything. The remainder of the text is a corruption of Tosephta Bava meṣi‘a11:12. The manure mentioned here is not animal excrement but the garbage thrown into the courtyard from the houses, which is broken by people stepping on it and in time transformed into material which can be used as fertilizer. From time to time this is swept together and then divided up among the different owners. Since one assumes that every door is used to throw garbage into the courtyard, it is reasonable to distribute the fertilizer proportional to the number of doors. The “covered walkway”, ἐξέδρα, should be read as “quartering”, ξενία (אכסניא), soldiers to be given quarters by the population. They are to be given quarters proportional to the number of dwellers in each house.] ” [Tosephta Bava meṣi‘a 11:21; Babli Bava meṣi‘a 108a. Both Babylonian sources speak of “5 vegetable gardens.” If a water counduit has to be repaired, every user has to pay for the repairs up to the place where he syphons off the water.] “Five courtyards which were using a water conduit and it broke. All of them repair together with the uppermost. The uppermost repairs at its place; the others with the second one. The second one repairs at its place; the lowest one repairs with all of them and at its place.” [Tosephta Bava meṣi‘a 11:20. Since a multi-storey house whose ground floor crumbles must be torn down, it is clear that one must read with the Tosephta בִּיב “pipe, sewage pipe” instead of בַּיִת “house, ground floor apartment.” Every apartment which uses the sewer is required to contribute to its repair from the point of its connection to the sewage system.] “Five apartments [E דייאטות; Greek δίαιτα; cf. Yebamot 1:6, Note 200. One should read with E מִשְׁתַּמְּשׁוֹת בְּבִיב “they use the same sewer”.] are built above a house which broke. All of them repair with the lowest. The lowest repairs at its place; the others with the second one. The second one repairs at its place; the uppermost repairs with all of them and at its place. [This part shows clearly that the entire baraita refers to a crumbling sewer system, not a crumbling house.] If it was a storm sewer they [The rate payors have to pay for its upkeep.] can prevent it being used for laundry. For laundry they cannot prevent it being used as storm sewer.”
“But Holy Scripture [A scroll of biblical texts.] they should not divide even if both of them want it.” Rebbi Hoshaia said, for example, Psalms and Chronicles. But Psalms and Psalms one may divide [In the Babli, 13b, Samuel explains that if the Bible is written in separate scrolls, the heirs may divide the scrolls; the collection does not have to remain intact. If Psalms are written in five different scrolls, they may be given to five different recipients.] . Rebbi Uqba said, even Psalms and Psalms one may not divide. Since one may not divide, each of them comes and reads in the other’s [book] [In order to emphasize and remind everybody of his co-ownership. But if the heirs could split the scrolls, they would lock them away in some treasure chest and never look at them again (explanation of R. Eliahu Fulda).] .